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@design_law@mastodon.social
2024-05-14 16:03:09

These reactions make me worry that this Federal Circuit decision will push more patent owners to use #ScheduleA litigation instead of APEX:
law360.com/articles/18356…

"One big takeaway from this ruling is that a patentee needs to be prepared to defend a [declaratory judgment] action anywhere in the country if they decide to go through the APEX program," said Paul Ainsworth of Sterne Kessler Goldstein & Fox PLLC.

A major advantage of APEX is the ability to address multiple infringing products at once, but the decision "creates a potentially significant downside to using the program to do that," he said, since it opens the door to multiple suits in different …
@design_law@mastodon.social
2024-05-14 22:43:41

SDFL judge orders Tesla to "file a Notice of Related Action by the close of business on May 13, 2024 identifying the four other related actions pending in the Southern District of Florida, along with a brief explanation why those claims and defendants were not included in the instant [#ScheduleA] case."

The Defendants identified in Schedule A to this Action are all commonly infringing
Plaintiff’s “Cybertruck” mark, but the evidence collected did not show infringement of “Tesla” or
Plaintiff’s other marks. Evidence taken for three of the related cases (24-CV-21263, 24-CV-60530,
and 24-CV-21278) demonstrated infringement of other intellectual property rights, predominantly
the “Tesla” mark. The fourth related case (24-CV-21265) collects a particularly high volume of
similar toy vehicles commonly…
@design_law@mastodon.social
2024-05-14 14:09:10

Here's the order from the #ScheduleA hearing @… mentioned yesterday:

@design_law@mastodon.social
2024-05-14 14:18:15

So, we're doing an IP event at my new school tomorrow. It will be the first time I'll talk about the #ScheduleA shakedown scheme while I am physically *in* the NDIL. Here we go....

@design_law@mastodon.social
2024-06-13 12:00:34

A good decision on #ScheduleA joinder from the NDIL (Judge Hunt):
storage.courtlistener.com/reca

@design_law@mastodon.social
2024-06-06 12:11:51

Pro se answer in one of the Tesla #ScheduleA cases says the defendant only sold $35 worth of the accused product, never to Florida, and not since 2022:
s…

2.
3.
4.
5.
6.
7.
The court does not have subject-matter jurisdiction over the claims because (briefly explain
why there is no .federal-question jurisdiction or diversity--<f-citizenship jurisdiction; see the complaint form for more
infonnation)
The court does not have personal jurisdiction over the defendant because (briefly explain)
Defendant made no sales of the product in question to the State of Florida. Total sates of the
product are approximately 35USD. Total profits amount to less than …
@design_law@mastodon.social
2024-05-01 12:23:33

Another good decision on #ScheduleA joinder out of the NDIL (this time, from Judge Ellis):
storage.courtlistener.com/reca

"Roadget’s allegations fall short in establishing a logical relationship among the remaining Defendants. Roadget asserts that Defendants all participated in the same mass infringement of
one of Roadget’s six copyrights by selling products on the same online platform, Temu. Courts in this district generally agree that alleging that multiple defendants have infringed on the same copyright in the same way does not create the substantial evidentiary overlap required to find a similar transaction or…
@design_law@mastodon.social
2024-05-01 12:34:23

#LawStudentNote idea: Does the "swarm" joinder theory set forth in the Bose case make sense for #ScheduleA cases? If so, what kind of showing should be required of the plaintiff?
Bose Corp. v. Partnerships & Unincorporated Associations Identified on Schedule "A&quot…

@design_law@mastodon.social
2024-05-29 12:25:29

Interesting decision in one of the Cozy Comfort #ScheduleA cases:
storage.courtlistener.com/reca

image from D859,788, for a oversized hoodie, from the decision
@design_law@mastodon.social
2024-05-27 12:15:13

The transcript from a February hearing in one of those EDVA #ScheduleA cases is now out.
The judge clearly has some concerns: "while, certainly, the courts are here to facilitate the voluntary resolution of matters through settlements and licenses, it is not appropriate to abuse the court's process by creating and pursuing litigation in which people don't have a fair opport…

I will say that the Court
doesn't need to weigh in on anything else, having granted the
motion, but I would note that the allegations that are made by
the defendant regarding the litigation as a whole are really
quite serious, and Plaintiff's counsel needs to think very
carefully about how it's going to proceed here. I'm not going
to give an advisory opinion. The matter hasn't been fully
briefed, but, Mr. Zito, you're correct that Mr. Reilly is well
respected, and it doesn't surprise me at all …
THE COURT: Well, there may come a time when these
issues are addressed by the Court, and if they are addressed in
a way in which there are allegations in which there was bad
faith or a violation of Rule 11, well, the Court will have to
confront that when it's before the Court.
The nature of these allegations is that these are very
small companies, this is very complicated litigation, and while, certainly, the courts are here to facilitate the
voluntary resolution of matters through settlements …
@design_law@mastodon.social
2024-04-25 11:35:05

E-Link v. #ScheduleA - In a patent case (what kind of patent case? we can't tell because of all the sealing), Judge Cummings denies permissive joinder. Then, when the case is dumped on a new judge, that new judge (Harjani) adopts the Judge Hunt "Ali Baba" rule (40 is okay, for some reason). Neither judge mentions 35 U.S.C. § 299.

@design_law@mastodon.social
2024-04-25 11:51:43

Another good #ScheduleA decision on #PermissiveJoinder, this time out of SDFL:
Peleg Design v. Schedule A, No. 1:23-CV-24672, 2024 WL 1759139, at *2 (S.D. Fla. Apr. 24, 2024)

The Court finds Plaintiff’s request to permit suit and injunctive relief against these 176 Defendants in one action is improper. While there may be some common questions of law and fact as to the Defendants, the Complaint does not allege how each Defendant’s acts of infringement “[arose] out of the same transaction, occurrence, or series of transactions or occurrences” of all the other Defendants. Fed. R. Civ. P. 20(a)(2)(A). See Omega, SA, 650 F. Supp. 3d at 1352; Kay v. Individuals, Partnersh…
@design_law@mastodon.social
2024-05-25 12:09:46

More #ScheduleA #CounterfeitRhetoric, this time in a design patent case:

On information and belief, Defendants either individually or jointly operate one or more of the Marketplace Stores attached hereto. Tactics used by Defendants to conceal their identities and the full scope of their counterfeiting operation make it virtually impossible for Plaintiff to learn the Defendants’ true identities and the full scope and interworking of their counterfeit network. If Defendants provide additional credible information regarding their identities, Plaintiff will take appropr…
@design_law@mastodon.social
2024-05-25 11:54:50

A pro se #ScheduleA complaint, alleging design patent infringement, with an unsealed Schedule A and an apparently misnamed patent (the patent named in the allegations doesn't match the attached document or how it's described):

On or about September 29, 2023, Plaintiff, through its agents, filed an application for
patenting the said design for the magnetic keyholder, which is listed in Exhibit 1. On or about April
2, 2024, the patent was lawfully issued to the applicant, with U.S. Patent No. D813317S. Plaintiff
is the lawful assignee of all rights, title, and interest in and to the Patented Design
attached patent: D1,020,230
@design_law@mastodon.social
2024-05-23 12:21:55

In #ScheduleA copyright case (before Judge Kennelly) a group of defendants accuses the plaintiff of all kinds of misconduct, including bad faith withholding of TRO documents and judge shopping:

@design_law@mastodon.social
2024-05-24 15:04:01

Oh, this is potentially big. Dyson denied profits in a trademark #ScheduleA case. At oral argument, two judges "pushed back on the notion that [Dyson] was at all entitled to a profits award in the case."

@design_law@mastodon.social
2024-05-23 15:40:09

Oof, no, two days is not enough notice. storage.courtlistener.com/reca

On May 20, 2024, Defendant received an email from Plaintiff’s counsel containing Plaintiff’s Complaint, Summons and the Temporary Restraining Order. On the same day, Plaintiff’s counsel

also sent a Motion for Entry of a Preliminary Injunction (ECF No. 23) and provided the Notice of Motion, which included the hearing’s time and venue.
On May 22, 2024, the court granted Plaintiff’s Motion for Entry of Preliminary Injunction. See ECF No. 27.
The answer is clearly no. Like in Granny Goose Foods, the time gap between the court’s decision to grant Plaintiff’s Motion for Entry of a Preliminary Injunction and the delivery of Notice of this motion for Defendant was less than two days. In addition, Defendant’s counsel was just retained on May 20, 2024, and no sufficient time was provided for him to gather and digest necessary information of the case. It was extremely challenging for both Defendant and its counsel to prepare for an opposit…