IPO Daily News™
Friday, 17 February 2017 1:32 pm
** FEDERAL CIRCUIT UPHOLDS ITC’S DEFAULT JUDGMENT SANCTION AND EXCLUSION ORDER
Organik Kimya v. Int’l Trade Comm’n 15-1774 — On Wednesday in an opinion by Judge O’MALLEY, the Federal Circuit upheld an ITC sanction and 25-year exclusion order against Organik. Dow sought to prevent Organik from importing opaque polymer products that allegedly infringed Dow’s patents. Dow later added allegations of trade secret misappropriation when it learned that Organik may have coordinated production with Dow’s former employees. In violation of discovery orders, Organik deleted potentially hundreds of thousands of computer files and Dow’s former employees destroyed a hard drive, a bag full of zip drives, and “accidentially” left a computer and storage devices in a highway rest stop bathroom.
The ITC concluded that Organik undertook massive spoliation of evidence and that this “egregious behavior” would be “gross bad faith” if that existed. The ITC found that Organik’s “abhorrent conduct” was more than sufficient to justify a default judgment and that “no lesser sanction [would] adequately deter the repetition of this kind of easily accomplished and highly prejudicial destruction of evidence.” A 25-year exclusion order was appropriate based on extensive facts and expert testimony that it would take Organik that long to develop the polymer independently. The Federal Circuit held there was no abuse of discretion in the ITC’s sanction or exclusion order.
(1 to 4 stars rate impact of opinion on patent & trademark law)
NEXT WEEK ON IPO’S IP CHAT CHANNEL: WILLFULNESS, ENHANCED DAMAGES, AND OPINIONS OF COUNSEL SINCE HALO
Tune in to the IP Chat Channel on Thursday, 23 February, at 2:00p.m. ET for Willfulness, Enhanced Damages, and Opinions of Counsel Since Halo. It has been more than six months since the U.S. Supreme Court’s decision in Halo lowered the bar for proving willful infringement, and this boon for plaintiffs is quickly changing trial strategy. Two of our panel of experienced litigators—CHRISTOPHER MARCHESE (Fish & Richardson PC) and MICHAEL ZELIGER (K&L Gates LLP)—have recently won willfulness verdicts for clients. Panelist NATALIE HANLON LEH (Wilmer Cutler Pickering Hale & Dorr LLP) recently authored an article on pleading willfulness.
Our panelists will examine how courts post-Halo have decided the sufficiency of pleading for enhanced damages at the motion-to-dismiss stage. Then, they will consider the factors that have most strongly influenced recent district court decisions to enhance—or not enhance—damages, including notice by the patent owner (cases such as CH20 and Finjan), copying (Westerbeke, Imperium, and PPC), and opinions of counsel (Dominion, Presidio, and Boston University). The discussion on opinions of counsel will weigh their success in warding off a finding of willfulness versus the possible negative effect on attorney-client privilege. IP Chat Channel webinars are recorded and available on our website after the live webinars. CLE granted in many states.
IP IN THE MASS MEDIA
Federal Judge Rejects Sony’s Motion to Dismiss Copyright Suit on NBC’s “Timeless”
On Wednesday Variety reported that a federal judge denied Sony’s motion to dismiss a copyright infringement lawsuit brought against it by Spanish producer Onza Partners. Onzo Partners claims that the new NBC television time-travel series “Timeless” copies the storyline of its “El Ministerio Del Tiempo.”
Tiffany & Co. Sued for Copyright Infringement over Use of Photograph
On Wednesday The Fashion Law blog reported that New York-based photojournalist PETER GOULD sued Tiffany & Co. for copyright infringement, claiming that the famed jewelry brand displays a Gould photograph of designer Elsa Peretti on its website without authorization.