Patent Litigation: Mapping a Global Strategy
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Brief Amicus Curiae of the District Attorneys Association of the State of New York and the National District Attorneys Association in Support of Respondent
No. 20-637 IN THE Supreme Court of the United States DARRELL HEMPHILL, Petitioner, v. NEW YORK, Respondent. ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF NEW YORK BRIEF AMICUS CURIAE OF THE DISTRICT ATTORNEYS ASSOCIATION OF THE STATE OF NEW YORK AND THE NATIONAL DISTRICT ATTORNEYS ASSOCIATION IN SUPPORT OF RESPONDENT J. ANTHONY JORDAN CYRUS R. VANCE, JR. President District Attorney DISTRicT ATTORNEYS ASSOciATION New York County OF THE STATE OF NEW YORK HILARY HASSLER Three Columbia Place Chief of Appeals Albany, New York 12210 DAvid M. COHN* (518) 598-8968 DIANA WANG Counsel for Amicus Curiae Assistant District Attorneys District Attorneys One Hogan Place Association of the State New York, NY 10013 of New York (212) 335-4098 [email protected] Counsel for Amici Curiae (For Continuation of Appearances See Inside Cover) * Counsel of Record 306644 BILLY WEST President NATIONAL DISTRicT ATTORNEYS ASSOciATION 1400 Crystal Drive, Suite 330 Arlington, VA 22202 (703) 549-9222 Counsel for Amicus Curiae National District Attorneys Association TABLE OF CONTENTS Page TABLE OF CITED AUTHORITIES .......................... ii Interest of the Amici Curiae .......................................1 Summary of Argument ...............................................2 Argument .....................................................................3 A. As courts have long recognized, a party may, through its litigation strategy, lose the right to assert a legal claim .......................................3 B. New York’s “opening the door” rule promotes fair -
Technology Giants in Patent Wars: Competition, Litigations and Innovation
1 Technology giants in patent wars: competition, litigations and innovation Heli Koski (ETLA/Aalto University) & Juha Luukkonen (ETLA) 26.4.2017 Building Expertise for Innovation -conference 2 Background • Patent wars involve aggressive intellectual property disputes and patent litigations. • Substantial costs for parties involved in them: In 2012, average cost of U.S. patent litigation for cases with over $25 million at stake was close to $6 million per party through trial, and even higher for those cases with retrials or appeals (The American Intellectual Property Law Association) • Damage to those found liable for patent infringement may be massive, examples: - Median damages awarded for U.S. patent holders in telecom industry 1995 – 2012: over $50 million - In 2012, Samsung was ordered to pay over $1 billion to Apple for its patent infringements (e.g., Iphone physical design, functions) 3 Background • Large technology companies (e.g., Apple, Microsoft, Samsung) have been in the spotlight. - Criticized for their massive investments in patent infringement lawsuits and accumulation of patent portfolios to secure patents for litigation. - Also envisioned envisioned as the major originators of patent wars filing lawsuits against each other. • Underlying forces of patent portfolio races and via what channels patent wars contribute to firm’s accumulation of patent portfolios lack empirical evidence. 4 Research questions • How large technology companies respond to i) patent wars involving firm directly, ii) patent wars not involving firms directly but emerging in their geographical market area, iii) higher fragmentation of patent ownership? • To what extent each of these elements contributes to a) patent portfolio races b) quality of their patented inventions? 5 Conceptual framework • Patent races (game-theoretic models): firms compete to be the first inventors of certain technology. -
Understanding Mass Tort Defendant Incentives for Confidential Settlements
WORKING P A P E R Understanding Mass Tort Defendant Incentives for Confidential Settlements Lessons from Bayer’s Cerivastatin Litigation Strategy JAMES M. ANDERSON WR-617-ICJ September 2008 This product is part of the RAND Institute for Civil Justice working paper series. RAND working papers are intended to share researchers’ latest findings and to solicit additional peer review. This paper has been peer reviewed but not edited. Unless otherwise indicated, working papers can be quoted and cited without permission of the author, provided the source is clearly referred to as a working paper. RAND’s publications do not necessarily reflect the opinions of its research clients and sponsors. is a registered trademark. - iii - THE RAND INSTITUTE FOR CIVIL JUSTICE The mission of RAND Institute for Civil Justice (ICJ) is to improve private and public decisionmaking on civil legal issues by supplying policymakers and the public with the results of objective, empirically based, analytic research. ICJ facilitates change in the civil justice system by analyzing trends and outcomes, identifying and evaluating policy options, and bringing together representatives of different interests to debate alternative solutions to policy problems. ICJ builds on a long tradition of RAND research characterized by an interdisciplinary, empirical approach to public policy issues and rigorous standards of quality, objectivity, and independence. ICJ research is supported by pooled grants from corporations, trade and professional associations, and individuals; by government grants and contracts; and by private foundations. ICJ disseminates its work widely to the legal, business, and research communities and to the general public. In accordance with RAND policy, all ICJ research products are subject to peer review before publication. -
THE DEFENSIVE PATENT PLAYBOOK James M
THE DEFENSIVE PATENT PLAYBOOK James M. Rice† Billionaire entrepreneur Naveen Jain wrote that “[s]uccess doesn’t necessarily come from breakthrough innovation but from flawless execution. A great strategy alone won’t win a game or a battle; the win comes from basic blocking and tackling.”1 Companies with innovative ideas must execute patent strategies effectively to navigate the current patent landscape. But in order to develop a defensive strategy, practitioners must appreciate the development of the defensive patent playbook. Article 1, Section 8, Clause 8 of the U.S. Constitution grants Congress the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”2 Congress attempts to promote technological progress by granting patent rights to inventors. Under the utilitarian theory of patent law, patent rights create economic incentives for inventors by providing exclusivity in exchange for public disclosure of technology.3 The exclusive right to make, use, import, and sell a technology incentivizes innovation by enabling inventors to recoup the costs of development and secure profits in the market.4 Despite the conventional theory, in the 1980s and early 1990s, numerous technology companies viewed patents as unnecessary and chose not to file for patents.5 In 1990, Microsoft had seven utility patents.6 Cisco © 2015 James M. Rice. † J.D. Candidate, 2016, University of California, Berkeley, School of Law. 1. Naveen Jain, 10 Secrets of Becoming a Successful Entrepreneur, INC. (Aug. 13, 2012), http://www.inc.com/naveen-jain/10-secrets-of-becoming-a-successful- entrepreneur.html. -
Intellectual Pro Perty • Spring 2012
Intellectual PROPERTY • Spring 2012 Special Advertising Section OUTSIDE PERSPECTIVES IP Litigation — The Pursuit Of Business Objectives By Other Means1 THE HALLMARK OF A SUCCESSFUL CLIENT-COUNSEL your business objectives. In cases where the exposure is pri- relationship is understanding the client’s business objectives, marily monetary, such as the defense of significant NPE claims, and then crafting a strategy that uses the legal means to pursue that calculus is different. In such cases, business objectives and advance those objectives. in the first instance must account for the balance between the IP litigation must be a means cost of litigation and discouragement of future claims, and the to an end and is not an “end” end game business objective may or may not involve going in itself. Business objectives to trial. Only by first understanding business objectives can Latham & Watkins’ IP litigation practice should therefore define the an appropriate litigation strategy be defined. One-size-fits-all operates in collaborative and cohesive strategic objectives in any IP approaches to litigation should be rejected in favor of a busi- teams and is distinguished by having many first chair trial attorneys familiar litigation. Crafting a success- ness-minded approach to IP litigation solutions. with the key IP disciplines, venues and ful litigation strategy requires technologies. For example, partners Ron Shulman, Larry Gotts and Max Grant a thorough understanding Maximize Leverage: (pictured) have collectively tried more of the critical elements of a The strength of a legal position, and its utility in achieving a than 40 patent cases to verdict as lead counsel and recovered more than $1.3 case, its interrelationship to business objective, can be determined by the manner in which billion for patentees. -
The Impact of Patent Wars on Firm Strategy: Evidence from the Global Smartphone Industry
Organization Science Articles in Advance, pp. 1–20 ISSN 1047-7039 (print) ISSN 1526-5455 (online) https://doi.org/10.1287/orsc.2016.1092 © 2016 INFORMS The Impact of Patent Wars on Firm Strategy: Evidence from the Global Smartphone Industry Yongwook Paik Olin Business School, Washington University in St. Louis, St. Louis, Missouri 63130, [email protected] Feng Zhu Harvard Business School, Harvard University, Boston, Massachusetts 02163, [email protected] trategy scholars have documented in various empirical settings that firms seek and leverage stronger institutions to Smitigate hazards and gain competitive advantage. In this paper, we argue that such “institution-seeking” behavior may not be confined to the pursuit of strong institutions: firms may also seek weak institutions to mitigate hazards. Using panel data from the global smartphone industry and recent patent wars among key industry rivals, we examine how smartphone vendors that are not directly involved in patent litigation strategically respond to increased litigation risks in this industry. We find that as patent wars intensify, smartphone vendors not involved in any litigation focus more of their business in markets with weaker intellectual property (IP) protection because of institutional arbitrage opportunities. This strategic response is more pronounced for vendors whose stocks of patents are small and whose home markets have weak-IP systems. Our study is the first to examine the relationship between heterogeneity in national patent systems and firms’ global strategies. It provides a more balanced view of firms’ institution-seeking behavior by documenting how they make strategic use of weaker institutions. Keywords: patent wars; patent litigation; intellectual property (IP) enforcement; patent thicket; smartphone; platform-based markets; platform competition History: Published online in Articles in Advance November 21, 2016. -
The Strategic Use of Public and Private Litigation in Antitrust As Business Strategy
University of Florida Levin College of Law UF Law Scholarship Repository UF Law Faculty Publications Faculty Scholarship 3-2012 The Strategic Use of Public and Private Litigation in Antitrust as Business Strategy D. Daniel Sokol University of Florida Levin College of Law, [email protected] Follow this and additional works at: https://scholarship.law.ufl.edu/facultypub Part of the Antitrust and Trade Regulation Commons, Litigation Commons, and the Public Law and Legal Theory Commons Recommended Citation D. Daniel Sokol, Strategic Use of Public and Private Litigation in Antitrust as Business Strategy, 85 S. Cal. L. Rev. 689 (2012), available at http://scholarship.law.ufl.edu/facultypub/320 This Article is brought to you for free and open access by the Faculty Scholarship at UF Law Scholarship Repository. It has been accepted for inclusion in UF Law Faculty Publications by an authorized administrator of UF Law Scholarship Repository. For more information, please contact [email protected]. THE STRATEGIC USE OF PUBLIC AND PRIVATE LITIGATION IN ANTITRUST AS BUSINESS STRATEGY D. DANIEL SOKOL I. INTRODUCTION One understudied area of the formative period of antitrust and of Standard Oil's conduct during this period is in the use and nature of antitrust private claims against Standard Oil. In contemporary antitrust, the ratio of private to government brought cases is ten to one.' In contrast, one hundred years ago government cases constituted nearly all antitrust cases,2 and many of such cases were state cases.3 On the hundredth anniversary of the Standard Oil decision,' the present Article uses a discussion of the antitrust private actions against Standard Oil prior to the company's court- ordered break up in 1911 as a starting point for a broader discussion about the interaction between public and private rights of action in antitrust in the modern era. -
Observations on the Rise of the Appellate Litigator
Observations on the Rise of the Appellate Litigator Thomas G. Hungar and Nikesh Jindal* I. INTRODUCTION........................................................................511 II. THE EMERGENCE OF A PRIVATE APPELLATE BAR ...................512 III. The Reasons Behind the Development of a Private Appellate Bar..........................................................................517 A. Appellate Practices as a Response to Modern Law Firm Economics ..............................................................518 B. Increasing Sophistication Among Clients About the Need for High-Quality Appellate Representation ...........523 C. The Increasing Stakes of Civil Litigation........................525 D. A Changing Supreme Court ............................................527 IV. SKILLS OF AN EFFECTIVE APPELLATE LAWYER.......................529 V. CONCLUSION ...........................................................................536 I. INTRODUCTION Over the last few decades, there has been a noticeable increase in the visibility and prominence of appellate litigators in the private bar. Most of the attention has focused on Supreme Court advocacy, where certain private law firms and lawyers have developed reputations for specialized expertise and experience in 1 briefing and arguing cases before the Court, but the phenomenon extends to other federal and state court appeals as well. The practice of law as a whole is becoming increasingly specialized, and the trend in appellate litigation is no exception, although it appears to be a more recent occurrence than the growth of substantive speciali- * Thomas G. Hungar is a partner at Gibson, Dunn & Crutcher LLP and Co- Chair of the firm’s Appellate and Constitutional Law Practice Group. He previously served as Deputy Solicitor General of the United States. Nikesh Jindal is an associate at Gibson, Dunn & Crutcher LLP and a member of the firm’s Litigation Department and of the Administrative Law and Regulatory and White Collar Defense and Investigations Practice Groups. -
Jewish Ngos, Human Rights, and Public Advocacy: a Comparative Inquiry
www.jcpa.org 6/10/2009 Jewish NGOs, Human Rights, and … Jewish Political Studies Review Visit our new website: Institute for Global Jewish Affairs Jewish Political Studies Review 11:3-4 (Fall 1999) Jewish NGOs, Human Rights, and Public Advocacy: A Comparative Inquiry Irwin Cotler This article is an inquiry into the contrasting principles and perspectives that underlie the differing character of human rights advocacy of Jewish NGOs in the U.S. and Canada. The author's underlying thesis is that their differing public advocacy (of religious human rights) is reflective not only of the different legal cultures in which the Jewish NGOs reside, but of the different principles which the NGOs espouse. Following an introduction into the typology of Jewish NGOs, and the nature of religious human rights, the article is organized around four themes: first, the historical contribution to the development of international human rights law in the matter of religious human rights and how this legacy has shaped contemporary public advocacy; second, the different contributions - inspired by a differing ideology and litigation strategy - by American and Canadian Jewish NGOs to the development of constitutional law in their respective countries in the matter of religious human rights; third, the different legal cultures - and different Jewish sensibilities - which anchor the work of these NGOs as reflected in two dramatically different case studies of public advocacy - in religion and state and hate speech issues; www.jcpa.org/cjc/cjc-cotler-f99.htm 1/37 www.jcpa.org 6/10/2009 Jewish NGOs, Human Rights, and … and finally, the "salience" of religious human rights in the panoply of human rights, and their importance - however different their advocacy - to the agenda of Jewish NGOs. -
Impact of Patent War on Innovation Vfinal.Pdf
Patent Wars and Their Impact on Innovation A study on Technology and Mobile patent litigation | Peter Tatrai Technology Strategy– Wharton San Francisco Karl Ulrich December 10th, 2012 WORD COUNT: 2570 (excluding cover, table of contents) and title Table of Contents Patent Wars and Their Impact on Innovation ............................................................................................. 1 This paper answers the Question: “Has the current patent system become a barrier to innovation?” ........ 1 1. The Patent System: A Barrier to Innovation? ..................................................................................... 2 Recent development involving the Patent System .............................................................................................................. 2 The Patent War among the tech giants – The Smartphones battlefield ..................................................................... 2 Patent as weapons of attack and defense and the rise of patent trolls ....................................................................... 4 The cost of the current patent system ....................................................................................................................................... 4 2. Problems with the patent system ............................................................................................................ 6 The lifetime of patents is too long and does not take industrial differences or the cost of developing the patent into account ........................................................................................................................................................................... -
Five Strategies for Effective Settlement Negotiations | Page 2
This article originally appeared in the Summer 2018 issue of From a defense point of view, the client Five Strategies usually wants to end the case as inexpen- sively as possible, but not always. The for Effective client may want to demonstrate its willing- ness to defend cases it views as meritless Settlement rather than pay a nuisance settlement. Negotiations The client’s view on litigation may change over time. For example, I conducted a settlement conference where the plaintiff’s BY HON. GERALDINE SOAT BROWN (RET.) case was not very strong, but it received a better settlement than the facts of the case Every litigator knows that many more cases would otherwise suggest. On the day of settle than go to judgment. At some point the settlement conference, the defendant in almost every lawsuit, the parties will company was in the process of being sold, discuss settlement, either on their own or and the owners wanted to eliminate any with a push from the judge. During my 16 contingent liabilities. years as a United States Magistrate Judge, I conducted more than 100 settlement con- ferences each year. I witnessed the whole 2. Identify, gather and 3. Look for settlement range of lawyer performance. Underpre- produce the most important opportunities. pared lawyers and their clients stumbled information early. Windows of opportunity for settlement into settlement conferences, often re- open at various times in a lawsuit. For a sulting in a negotiation that didn’t lead to Settlement negotiations are most effective defendant, it’s almost always worthwhile settlement, or they settled on terms they at the proverbial sweet spot, when each to ask the plaintiff’s lawyer during the found disappointing. -
Artikelen PRIVATEERS and TROLLS JOIN the GLOBAL PATENT WARS; CAN COMPETITION AUTHORITIES DISARM THEM?
Mr. M. Dolmans1 Artikelen Privateers and trolls join the global patent wars; can competition authorities disarm them? Computerrecht 2014/37 a component that is subject to network effects, and you can threaten producers with catastrophic loss. On Halloween of 2013, patent assertion company – Patents proliferate in the ICT sector. This is partially Rockstar, owner of one of the largest patent portfo- due to patent mining and strategic patenting – firms lios in the world, 2 filed patent law suits against seven creating dense thickets of overlapping patent claims mobile phone makers and Google in the Texas ‘rocket covering and surrounding a product to block rivals. As docket’. 3 This heralded an escalation in the mobile patent offices are overwhelmed by applications in new, patent world war raging since 2010. fast-moving and complex technology areas, some think they grant patents without adequate review, leading to This ‘Halloween Attack’ is symptomatic of an in- lower patent quality. 4 Yet, in a portfolio, volume makes creasing problem: opportunistic exploitation of up for weakness. Patents are presumed valid, and chal- patents by Patent Assertion Entities (‘PAEs’, or less lenging patents is costly and time-consuming. More politely, ‘trolls’), and the strategic use of such PAEs important, if one patent is annulled or found not in- by firms to hamper their rivals. The war stories from fringed, patentees will have others. Litigation becomes the mobile phone sector are interesting as examples like a fight against the Hydra: chop off one head and of a competitive game, but even more as a harbin- two more grow.