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

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.

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

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 case it brought against Anti-Marketing Systems, Inc. in the District of Massachusetts. Our District’s newest addition to the federal bench, Judge F. Dennis Saylor, IV, rejected the motion on the ground that the defendant had raised a “substantial question” as to the validity of the patent – in this case due to obviousness. In a crisply written and thorough opinion Judge Saylor didn’t even reach the thorny question of irreparable harm, which might have provided an alternative basis altogether for denying the motion.

Of course, the case goes on, and Printguard has appealed Judge Saylor’s decision, so stay tuned.

Old Lawyers Never Die, They Just Lose Their Judgment

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.

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

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 and non-solicitation agreements. The Alliance is opposed to non-compete agreements. They are different issues.This blog will serve to share related topics, stories, news & links about this effort.

Many of the large high tech companies in Massachusetts believe that noncompete agreements are in their best interests, and I suspect that there is quite a bit of lobbying going on behind the scenes on this issue. It will be no small undertaking for the Alliance to unseat over one hundred years of Massachusetts common law permitting enforcement of NCAs.

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

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,” the appeals court said in its 42-page decision.

The court said a reasonable jury could find that the staring had interfered with Billings’s work performance or changed the terms and conditions of her employment.

This case appears to open the door wider to hostile work environment claims. You can read the full case here.