More Patent Sanctions

Cervical_spine_Xray.jpgIn a recent entry I noted that IP attorneys may want to be a little more careful about aggressive trial practices, because courts are starting to hand out penalties for such acts. We are talking millions of dollars here. It has happened again, and this time the misbehaving attorneys must pay $10 million. And yet again claim construction is the problem.

Apparently DePuy Spine sued Medtronic Sofamor Danek for patent infringment regarding some devices used in spinal surgeries. Medtronic hired Dewey & LeBoeuf to defend. The judge ruled regarding claim construction. Yet, it seems the Dewey attorneys thought the judge was kidding. For Harrington wrote that they “‘demonstrated a failure to accept the claim construction governing this case’ throughout the trial.”

In addition whereas Medtronic claims its attorneys “vigorously defended” the company the judge thought that the line had been crossed. According to the order a defense that is “an attempt to obscure, evade, or minimize,” the claim construction ruling and that “sought to take advantage of the technical and legal complexities inherent in this case” was improper. Some of course may think that taking advantage of technical and legal complexities is the definition of an attorney.

As the National Law Journal reports the judge found other behavior was questionable too. Here is a quote from the order “The defendants prolonged the proceedings unnecessarily (thus unduly imposing upon the jury’s time), they sought to mislead both the jury and the Court, and they flouted the governing claim construction as set forth by the Federal Circuit.” Hmm no more attrition behaviors? That would be a wild shift for IP cases.

So maybe attorneys need to be less aggressive. Maybe the system lets these behaviors through and reform is needed to prevent them. Then again if a company has millions or perhaps billions of dollars of market cap attributed to its intellectual property, little will deter using every tactic possible including paying whatever fines come down the pipe to protect that asset. In addition, when one considers the incentive to bring a strategic law suit to keep a piece of the market for even a few years, these behaviors will continue. Individuals may not always operate under maximizing principles; corporations, however, are much better at staying that course.

Hat tip and thanks to “IP Litigator” for pointing this one out.

Image: WikiCommons

License: Public Domain

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3 Responses

  1. IP Litigator says:

    I hope the slap-down trend continues. Attorney misbehavior is par for the course in patent litigation. The topic is rife for scholarly inquiry and discussion. Why Congress hasn’t convened committee hearings on it is beyond me!

  2. IP Litigator says:

    I hope the slap-down trend continues. Attorney misbehavior is par for the course in patent litigation. The topic is rife for scholarly inquiry and discussion. Why Congress hasn’t convened committee hearings on it is beyond me!

  3. IP Litigator says:

    I hope the slap-down trend continues. Attorney misbehavior is par for the course in patent litigation. The topic is rife for scholarly inquiry and discussion. Why Congress hasn’t convened committee hearings on it is beyond me!