Class Notes Flashcards
What is the pleading standard after Twombly?
Plausibility
What is the plausibility standard?
A pleading must contain enough factual allegations to show that the claimed violation is plausible, not just possible.
Does the plausibility standard apply to all federal civil cases?
Yes,
- Twombly - Antitrust
- Iqbal - All civil cases
- Robern - Patent Litigation
What is Fed Civil Procedure Rule 8(a)?
Pleadings require a short and plain statement of the claim entitling he pleader to relief, plus Twombly/Iqbal/Robern plausibility standard.
What is “general” jurisdiction?
If D has continuous and systematic or substantial connections with the forum then any claim can be ajudicated with the forum.
- So many contacts to be at “home” in the forum
What are the first two steps to assess Patent Infringement?
- Claim Construction
- Markman (what does the claim mean)
- Does the Claim read in accused device/process
- Literally
- Doctrine of Equivalents
What are the two defenses to infringement?
- Invalidity
- Unenforceability
What types of remedies are available in an infringement action?
- Injunctive
- Temp or Permanent
- Damages
- Reasonable Royalties
- Lost Profits
What law controls for an appeal from the USPTO or district court in a patent infringement case?
Federal Circuit
What law applies to an appeal of a district court on a Trademark or Copyright infringement action?
Regional Circuit
What law applies to an appeal from the district court for an anti-trust case?
Regional Circuit, unless the issue clearly involves the Federal Circuit’s exclusive jurisdiction.
What is an assignment?
The transfer of all rights in a patent
What is a license?
A promise by the patent holder not to sue for infringement in return for royalties or other concessions.
What types of licenses are there?
- Exclusive
- Non-Exclusive
What is an exclusive license?
One where the licensor transfers “substantially all” of the rights.
What rights does a patent holder have?
Essentially the patent is treated like property, the patent holder can:
- Sell
- Lease
- in whole or part
- Bequeth
- Exclude
Does an assignment or exclusive license have to be in writing?
Yes, and recorded at USPTO
Who has standing to bring a suit of infringement?
- Patent Holder
- Assignee
- Holder of “all substantial rights”
- Exclusive licensee
- with proper joinder of patent holder
What is required to seek a declaratory judgement?
A controversy
What is the test for DJ jurisdiction?
Whether the facts alleged, under all the circumstances, show that there is a substantial controversy beween parties having adverse legal interests, of suffcient immediacy and reality to warrant the issuance of a DJ.
What can trigger a plaintiff to file a DJ action?
- reasonable apprehension of being sued for infringement
- patentee exerts rights under a patent against another party
- a party contends it has the right to engage in accused activity without a license.
What are the “private” factors to be considered when deciding a venue transfer question?
- Relative access to sources of proof
- Availability of subpoena of witnesses
- Cost of attendance of willing witnesses
- Trial be easy, expeditious, and inexpensive
Piper
What are the “public” factors to be considered when deciding a venue transfer question?
- Court congestion
- Localized interests decided at home
- Familiarity with forum law governing the case
- Avoidance of conflicts of law or in the application of foreign law
What 12(b) defenses must be raised in a motion prior to answering the complaint or be waived?
(2) - Lack of personal jurisdiction
(3) - Improper venue
(4) - Improper notice
(5) - Improper service













