February 2008

"A Million Here, A Million There, and Pretty Soon …." Judge Harrington Awards $10 Million in Attorney's Fees in Medtronic Patent Litigation

February 26, 2008

The Patent Statute states: The court in exceptional cases may award reasonable attorney fees to the prevailing party. 35 U.S.C. 285. While finding no “willfulness” in the underlying infringment, Judge Harrington has imposed attorney’s fees of $10 million based on Medtronic’s trial conduct in the long-running Medtronic/Depuy Spine patent infringement litigation. Specifically, Judge Harrington concluded that Medtronic’s lawyers attempted to “mislead and confuse the jury in a manner inconsistent with the patent claim construction required by a decision of the Court of Appeals for the Federal Circuit (linked to above). Judge Harrington imposed this sanction under the patent statute and the court’s inherent power. However, context is everything. Believe it or not, this amount represents only 15% of plainitiff’s attorney’s fees during one phase the case (do the math – (15%x = $10 million)). And, the liability judgement against Medtronics was $226 million. But, still, $10 million isn’t chump change, even to Medtronics. Can you spell a-p-p-e-a-l? In fact, the whole kit and caboodle (judgment, attorney’s fees, and more), has been appealed. Click here to read Judge Harrington’s decision.

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It's Difficult to Get a Preliminary Injunction in a Patent Infringement Case (understatement)

February 20, 2008

When you can prove that you likely are the victim of copyright or trademark infringement, or trade secret misappropriation, you have a good shot at getting a preliminary injunction (if you can afford the bond). That’s because there is a legal “presumption” of irreparable harm associated with these types of IP claims. Prove likelihood of success and you are well on your way to the promised land of “irreparable harm.” But, this is not true in patent cases. It’s quite difficult to get a preliminary injunction in a patent infringement case. Its always been hard, and its getting harder. After all, in 2006 the Supreme Court issued a ruling the result of which is that injunctions are far from a sure thing, even if you win a patent infringement case on the full merits (for example, after trial). eBay v. MercExchange [link]. Many courts (although not the Federal Circuit Court of Appeals, which holds almost all of the big mojo when it comes to patent matters, trumpted only by SCOTUS), has not explicitly held that MercExchange applies to preliminary injunctions, but it would be illogical to conclude the holding in that case does not apply in the context of preliminary injunctions, and a number of district courts have so held. Printguard, Inc. recently discovered how hard it is to get a preliminary injunction in a patent infringement case in a…

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Old Lawyers Never Die, They Just Lose Their Judgment

February 11, 2008

One of the most highly respected Massachusetts Superior Court Judges, Allan van Gestel, retired on December 31, 2007, at the age of 72. A recent press release from JAMS shows that Judge van Gestel is following the time-honored practice of becoming a mediator and arbitrator for JAMS (or another large mediation/arbitration organization). A lot of judges that try this really don’t seem very well suited for the task, for reasons that escape me. Maybe they have a hard time transitioning from a position of near-absolute power to little of no power at all. However, based on a lot of contact with Judge van Gestel (Ret.) over the years, and knowing his reputation as former head of the Business Litigation Sesssion, I suspect he’s going to break the mold, and will be very successful in this role. Oh, and despite the title of this blog entry, if there were ever a former judge that proved the proposition that 72 is the new 42, it’s Judge van Gestel. For some earlier comments on Judge van Gestel, click here, here, and here, and search the site for even more.

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The "Alliance for Open Competition" or "Noncompete Agreements Should Not Be Enforceable in Massachusetts"

February 11, 2008

In December I wrote a post title Why Has Silicon Valley Outperformed Boston/Route 128 as a High Tech Hub? The topic was whether the legality of noncompete agreements (“NCAs”) in Massachusetts has put the state at a disadvantage to California, where NCAs are not enforceable. The Alliance for Open Competition is a blog where people and organizations who would like Massachusetts to join California (and other states) and make NCAs illegal express their views on this issue. The first entry in the blog is Spark Capital’s open letter to Governor Deval Patrick in early December 2007. The purpose of the Alliance is described as follows: The Alliance for Open Competition is a group of entrepreneurs, investors and executives dedicated to fostering innovation throughout the US. We seek to breakdown a major barrier to entrepreneurialism: the use of non-competition agreements mandated by employers that force employees to sign away their rights to engage in any business of a competitive nature when they leave their present jobs. Today Massachusetts, New York and Michigan are among dozens of other states that still enforce non-compete clauses. We believe that employment non-competes are stifling the emergence of start-up companies in these states, forcing innovative entrepreneurs to take on tremendous legal and financial risks, and hampering the ability to meet our fullest economic potential as a nation. To be clear, we do support non disclosure agreements…

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First Circuit Widens Door to Claims of "Hostile Work Environment"

February 8, 2008

The words “hostile work environment” get tossed around a lot by lawyers. But, just what constitutes a hostile environment that’s actionable under Title VII of the Civil Rights Act of 1964 is uncertain. It’s sort of a “I can’t define it, but I know it when I see it” standard. That standard may work at the two extremes (clearly egregious vs. obviously benign behavior), but it can be difficult to apply in the grey zone. The First Circuit has weighed in on this issue with an important decision, reported in today’s Boston Globe, reversing summary judgment against an employee of the Town of Grafton who claimed a hostile work environment based on the assertion that her supervisor repeatedly stared at her breasts. The First Circuit saw the behavior in this case differently than the trial judge, who had dismissed the case. Quoting from the Boston Globe article: The three-member appeals panel said that Billings’s sexual harassment suit had raised serious claims, including that Connor had created a hostile work environment by staring at the breasts of several town employees and, after Billings complained to the Board of Selectmen around 2001, had retaliated against her by transferring her to another municipal job. “Taken in the light most favorable to Billings, the evidence depicts a supervisor who regularly stared at her breasts for much of the 2 1/2 years they worked together,”…

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SJC Approves Joint Defense Agreements in Massachusetts

February 7, 2008

Lately, I’ve had a number of cases where the lawyer for a co-defendant wants to cooperate. Because this usually involves sharing attorney-client privileged information, we agree that our discussions are covered by the “joint defense privilege,” and sometimes enter into a “joint defense agreement.” Recent discussions in this area reminded me that I never mentioned the Massachusetts Supreme Judicial Court’s 2007 decision in Hanover Insurance Company v. Rapo & Jepsen Insurance Services, Inc., where the SJC, for the first time, gave broad approval to cooperation between attorneys whose clients share a common interest. The court held (or sugggested) that the “common interest doctrine,” which enables joint defense agreements, covers not only co-defendants, but co-plaintiffs, nonparties to litigation, and a party and a nonparty. A shared interest agreement need not be in writing, and the clients need not have been aware of it or consented to it. The interests of the parties need not be identical, as long as they are similar. Not an earthshaking decision, since many attorneys assumed this to be the law, but worth a mention, now that it clearly is the law in Massachusetts.

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After Ten Years of Proceedings, Final Decisions of Disbarment from SJC in the Demoulas Ethics Cases

February 6, 2008

I have written several times about the disciplinary proceedings against several attorneys who represented the losing party in the Demoulas cases. (see here, here and here). As I described in the first of these blog entries: The saga of how Gary Crossen (then of Foley, Hoag & Eliot and former ethics counsel to two Massachusetts Governors), Richard Donahue (a former President of the Massachusetts Bar Association, chair of its Commission on Professionalism and President of Nike, Inc.), and Kevin Curry, a former Massachusetts Assistant Attorney General, lured the judge’s former law clerk out-of-state in order to tape record his “confession,” attempted to bully him into signing an affidavit, conducted surveillance on him, and more, is described in agonizing detail in the 229 page decision. As a fan of hard boiled detective novels (including Boston’s current claim to fame, Dennis LeHane, author of Mystic River and other engrossing works), I can only say that in Boston, reality is stranger than fiction. After years of hearings and delays Bar Counsel issued her decision recommending the “ultimate sanction,” disbarment of all three attorneys. Her decision is now working its way through the Board of Bar Overseers and will ultimately be in the hands of a single Justice of the State Supreme Judicial Court. The consensus in the community appears to be that bar counsel’s decision will be followed. Bar Counsel’s recommendation of disbarment…

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Pocket Guide to Electronic Evidence, for Federal Judges

February 5, 2008

Judges need to keep learning too, and a major source of education for them is the Federal Judicial Center, an organization dedicated to judicial education. In fact, the FJC site is pretty cool. For example, here is a page that provides the biography of every federal judge (all courts, from District Court to Supreme Court), since 1789. Here is the bio of Judge Andrew A. Caffrey (deceased), who made me sweat quite a bit during this 37 day trial back in the early 1980s. In any event, the FJC publishes various learning materials for judges, and last year they published a short work titled, Managing Discovery of Electronic Information: A Pocket Guide for Judges, authored by Judge Barbara J. Rothstein and former U.S. Magistrate Ronald J. Hedges. As I’ve noted in the past, electronically stored information (or ESI, as its known), presents enormous challenges to lawyers and judges, almost all of whom were educated long before the last decade’s explosion in ESI. This Pocket Guide is important reading for lawyers practicing in the federal courts since it’s reasonable to assume that (a) the federal judge before whom you’re appearing probably has a copy sitting on the corner of his or her desk, gratis from the FJC, and (b) it may constitute the entirety, or close to it, of what the judge knows about ESI.

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