EASTERN DISTRICT OF VIRGINIA IP YEAR IN REVIEW
Published in February 2020
TABLE OF CONTENTS
PATENT.........................................................................................................................................................................................3 COPYRIGHT .................................................................................................................................................................................. 11 TRADEMARK .................................................................................................................................................................................. 15 TRADE SECRET.................................................................................................................................................................................. 18 CONCLUSION .............................................................................................................................................................................. 20 AUTHORS / EDITORS ................................................................................................................................................................... 20 SUPPLEMENTAL INFORMATION ................................................................................................................................................ 21
The Eastern District of Virginia (the District) saw a wide variety of intellectual property cases in 2019 and had the opportunity to weigh in on several interesting legal issues in the areas of patent, copyright, trademark and trade secret law. The year ended with a copyright infringement trial against Cox Communications that resulted in a $1 billion jury verdict.
The District continues its reputation of moving cases quickly and offering the litigants decisive judging on important legal issues. We highlight some of the decisions below in our annual Intellectual Property Year in Review for the Eastern District of Virginia.
We begin this year's review with a pair of decisions issued by Judge M. Hannah Lauck in Trustees of Columbia University in the City of New York v. Symantec Corp. The first decision addresses the issue of inter partes review estoppel,1 and the second concerns claim construction.2
The Trustees initially filed the case in 2013, in which they alleged that Symantec's Norton antivirus software infringed six patents owned by Columbia.3 At the parties' request, the court entered a scheduling order that set deadlines to file infringement and invalidity contentions.4 Symantec timely served its invalidity contentions, which included contentions related to the `115 and `322 patents.5 The parties submitted claim construction briefs and the court conducted a Markman hearing.6 The court issued a claim construction order, which it subsequently clarified. Based on the court's clarified claim construction order the parties jointly moved the court to issue a final judgment of noninfringement. The court issued the requested order and the Trustees appealed to the Federal Circuit.7 Ultimately, the Federal Circuit affirmed in part, and reversed in part. Specifically, "with regard to the `115 and `322 patents, the Federal Circuit vacated the Court's clarified construction of the term `anomalous,' reversed the Court's judgment as to those two patents and remanded for proceedings consistent with the Federal Circuit's opinion."8
1 390 F. Supp. 3d 665 (E.D. Va. 2019). 2 No. 3:13cv808, 2019 WL 2774321 (E.D.Va. July 2, 2019). 3 390 F. Supp. 3d at 669670. 4 Id. at 669. 5 Id. at 669670. 6 Id. at 670. 7 Id. at 670. 8 Id. at 670671.
Meanwhile, Symantec filed a petition for inter partes review of the subject patents, including the `115 and `322 patents. Symantec's invalidity contentions filed in the district court identified dozens of grounds of invalidity for these patents. However, in its petition, Symantec only identified three grounds of invalidity for the `115 patent, and two grounds of invalidity for the `322 patent.9 The Patent Trial and Appeal Board (PTAB) fully instituted inter partes review of the `115 and `322 patents on all of the grounds asserted in Symantec's petition. After conducting its review, the PTAB invalidated some of the claims of the patents, but left other claims intact. The PTAB's decision was affirmed by the Federal Circuit.10
Following both appeals, the case made its way back to the district court. The Trustees filed a motion for partial summary judgment based on inter partes review estoppel. The Trustees argued that Symantec should be precluded from relying on the dozens of grounds of invalidity asserted in its invalidity contentions that were not included in its petition for inter partes review. Judge Lauck agreed and granted the motion.11
The court focused its analysis on the plain language of the statute which states: "The petitioner in an inter partes review of a claim in a patent under this chapter that results in a final written decision under 318(a) ... may not assert either in a civil action arising in whole or in part under section 1338 of title 28 ... that the claim is invalid on any ground that the petitioner raised or reasonably could have been raised during that inter partes review.12" The court had no trouble finding that Symantec "reasonably could have raised" the grounds for invalidity
9 Id. at 671672. 10 Id. at 672673. 11 Id. at 668. 12 35 U.S.C. 315(e)(2).
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contained in its invalidity contentions when it filed its petition for inter partes review--it simply chose not to do so.13 Symantec was therefore estopped from pursuing those grounds of invalidity in the district court.14
In reaching this decision, the court distinguished the Federal Circuit's decision in Shaw Industries Group, Inc. v. Automated Creel Systems, Inc.15 In that case, Shaw filed a petition for inter partes review that raised several grounds for invalidity. The PTAB instituted a review on some, but not all, of the grounds asserted in the petition. The Federal Circuit held that Shaw would not be estopped in a later proceeding to assert the grounds for invalidity that were included in the petition, but for which the PTAB did not institute review. In reaching this decision, the Federal Circuit held that an IPR does not commence until it is instituted. Thus, Shaw did not raise, and could not have raised, the rejected grounds for invalidity "during that inter partes review" and estoppel did not apply.16
Symantec argued that, pursuant to Shaw, estoppel only applies to "those grounds on which the PTAB actually instituted inter partes review" regardless of what was contained in the petition.17 Judge Lauck rejected this argument and held that Shaw is limited to its facts and does not apply where a defendant simply fails to include a known invalidity position in its petition.18 The court further noted that "courts will no longer face issues stemming from partial institution" in light of the Supreme Court's decision in SAS Institute, Inc. v. Iancu, striking down that practice.19
The second decision issued by Judge Lauck in the Symantec case concerns claim construction.20 The decision is noteworthy for its commentary on the court's authority to limit claim construction, which can have a significant impact on a case involving multiple patents or disputed terms.
When the case resumed in the district court, the Trustees requested that the court conduct a Markman hearing to construe the term "anomalous." This term was previously construed by the court, but the Federal Circuit vacated the construction. In addition, Symantec requested that the court construe an additional term, not previously presented to the court for construction. Symantec conceded it was aware of the dispute over this term before the court entered the agreed judgment which lead to the Federal Circuit appeal; however, it did not raise it because it had prevailed--at least at the then-current stage of the litigation.21
The court granted the motion for additional claim construction, but not before emphasizing its authority to manage the claim construction process. The court noted it was not required to construe every term in a patent.22 The court further reminded the parties that it may set deadlines for claim construction and refuse to permit any additional constructions after the deadlines expire.23 Nevertheless, the court agreed to conduct Markman proceedings regarding the term "anomalous" because it appears in "all remaining claims in this case" and "constitutes a critical disputed term, the construction of which will likely have a drastic impact on the outcome of this litigation."24 The court also reluctantly agreed to construe the term identified by Symantec. The court noted that Symantec could have identified the dispute regarding this term earlier in the case, but made a strategic decision not to do so. Thus, the court stated it was within its authority to deny Symantec's request. Although the court agreed to construe the additional term, Judge Lauck cautioned "that endless claim construction or requests for reconsideration of finallydecided issues will not be tolerated."25
13 390 F. Supp. 3d at 677678. 14 Id. at 681 15 817 F.3d 1293 (Fed. Cir. 2016). 16 Id. 17 390 F. Supp. 3d at 676677. 18 Id. at 679. 19 Id. at 676 (citing SAS Institute, 138 S. Ct. 1348 (2018)). 20 2019 WL 2774321.
21 Id. at *6.
22 Id. 23 Id. at *5. 24 Id. at *6. 25 Id. at *10.
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The court also issued claim construction opinions in the following cases: Groove Digital, Inc. v. United Bank (Judge Liam O'Grady)26; Bushnell Hawthorne, LLC v. Cisco Systems, Inc. (Judge T.S. Ellis III)27; BASF Plant Science, LP v. Commonwealth Scientific and Industrial Research Organization (Judge Henry Coke Morgan, Jr.).28 These decisions are case specific, so we do not discuss them here. However, they demonstrate the court's adherence to general principles of claim construction.
Next we turn to several 101 cases, in which the court considered whether the patent-in-suit was invalid as directed to ineligible subject matter. We note that since Alice Corp. Pty. Ltd. v. CLS Bank International,29 the 101 cases seem to have balanced out, perhaps with a slight trend in favor of the patent owner.
In both Jaguar Land Rover Limited v. Bentley Motors Limited30 and Trustees of Columbia University v. Symantec Corporation,31 the court denied defense motions based on 101. In both cases, the court held that the patent was not directed to an abstract idea.
In Jaguar Land Rover Limited, Jaguar sued Bentley for infringement of the `828 patent. The patent concerned a "vehicle control system" that adjusted the various subsystems in the vehicle, such as the engine, transmission, brakes, traction control, and suspension and steering, based on the terrain.32 Specifically, the driver selects the type of off-road driving surface from
26 No. 1:18-cv-00966, 2019 WL 1869853 (E.D. Va. Apr. 24, 2019). 27 No. 1:18-cv-760, 2019 WL 2745735 (E.D. Va. July 1, 2019). 28 No. 2:17cv503, 2019 WL 1922521 (E.D. Va. Apr. 29, 2019) and 2019 WL 2141923
(E.D. Va. May 15, 2019). 29 573 U.S. 208 (2014). 30 388 F. Supp. 3d 665 (E.D. Va. 2019). 31 No. 3:13cv808, 2019 WL 6138419 (E.D. Va. Nov. 19, 2019). 32 388 F. Supp. 3d at 669670.
an input panel, and the "controller then instructs each of the subsystems to operate in a manner or mode that is suitable for driving on the selected surface."33 Bentley moved to dismiss the complaint for failure to state a claim and argued that the `828 patent was invalid for failure to claim patent-eligible subject matter.34 Judge Mark. S. Davis denied the motion to dismiss.
Before analyzing the patent itself, the court provided a detailed discussion of the history and purpose of 101. The court began its analysis by citing the intellectual property clause of the United States Constitution, pursuant to which Congress is authorized "[t]o promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."35 In accordance with this authority, Congress, through 101, has provided for patent protection for "[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof."36 This provision, by its terms, excludes from patent protection the "[l]aws of nature, natural phenomena, and abstract ideas."37 As explained in Alice, "[m]onopolization of those tools through the grant of a patent might tend to impede innovation more than it would tend to promote it, thereby thwarting the primary object of the patent laws."38 For this reason, the Supreme Court has "repeatedly emphasized this ... concern that patent law not inhibit further discovery by improperly tying up the future use of these
33 Id. at 670. 34 Id. at 673. 35 Id. (quoting U.S. Const. art. I, 8). 36 Id. at 673674 (quoting 35 U.S.C. 101). 37 Id. at 674 (quoting Alice, 573 U.S. at 216). 38 Id. at 674 (quoting Alice, 573 U.S. at 216217).
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building blocks of human ingenuity."39 However, courts must be cautious in applying the exclusionary rule "lest it swallow all of patent law" because "[a]t some level, all inventions ... embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas...."40
The court then restated the familiar two-step framework from Alice for determining whether the subject patent claims patent-ineligible subject matter. The first step requires the court to "determine whether the claims at issue are directed to one of [the] patent-ineligible concepts."41 If they are, then the second step requires the court to "consider the elements of each claim both individually and `as an ordered combination' to determine whether the additional elements `transform the nature of the claim' into a patent eligible application."42
With respect to the first step of the Alice inquiry, that is determining whether the patent is directed to a patentineligible concept, the court stated that it "must identify the purpose of the claim ... what the claimed invention is trying to achieve ... and ask whether the purpose is abstract."43 The court defined the purpose of `828 patent as "manipulating multiple vehicle subsystems to allow a vehicle to better adapt to driving on various types of on-road and off-road surfaces."44 The court then turned to whether the patent was directed to an "abstract idea."
The court stated that this analysis includes comparing "the claims at issue to prior 101 cases."45 The court also identified several "basic principles" to aid in this analysis, including: "1) whether the claims are directed to an improvement to computer (or any other technological) functionality, and 2) whether the claims are directed to a mental process or a process that can be performed with a pen and paper."46
Jaguar argued that "the claims are directed to an improvement in computer functionality because the technology permits the manipulation of multiple vehicle subsystems at once."47 Jaguar further argued that "[p]rior to the `828 patent, drivers had to know the appropriate configurations of various subsystems when driving offroad on particular driving surfaces, the subsystems had to be manually changed one at a time, and a limited number of subsystems could be manipulated at one time."48 According to Jaguar, the `828 patent offers improvements "by permitting a driver to control multiple subsystems at once" and because it "provides preset configurations of various subsystems for particular surfaces."49
Bentley argued that the `828 patent merely computerized "what drivers already do in their mind--for instance by slowing down while going downhill."50 Bentley cited cases in which courts held that "merely using computers to perform what people can otherwise do is patent-ineligible."51
39 Id. (quoting Alice, 573 U.S. at 216217). 40 Id. (quoting Alice, 573 U.S. at 216217). 41 Id. at 675 (quoting Alice, 573 U.S. at 217) (additional citations omitted). 42 Id. (quoting Alice, 573 U.S. at 217). 43 Id. (citations omitted). 44 Id. at 675676 (quoting Cal. Institute of Tech. v. Hughes Commc'ns Inc., 59 F. Supp. 3d 974
(C.D. Cal. 2014).
45 Id. at 677.
46 Id. 47 Id. 48 Id. at 677678. 49 Id. at 678. 50 Id. 51 Id.
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The court held that, "applying these principles and construing the pleadings in the light most favorable to Plaintiff ... the claims are not directed to an abstract concept."52 The court analogized to cases which have held that cruise control systems in a vehicle are patentable.53 The court further cited Jaguar's allegations of "improve[ment]s to computer functionality by allowing a driver to select one configuration on an input panel and then control multiple subsystems."54 The court also emphasized that "the technology physically changes the subsystems of the vehicle," for example, "[c]laim 41 adjusts the suspension subsystem, and changes the actual height of the vehicle."55 The court explained "[t]hese claims do more than just perform a function, which Defendants characterize as driving differently in different conditions, but rather provide `a particular way of performing that function.' "56 This is more than "computeriz[ing] what humans would otherwise do by replacing the mental process entirely."57 As the court explained, "[d]rivers may continue to engage in the same mental processes, but the vehicle itself has adapted to optimize and make driving on different surfaces more efficient."58 The court concluded, "[b]ecause the claims of the patent are directed at both improvements in computer functionality and providing concrete, physical means of implementing the functionality, the Court concludes that the `828 patent is not directed at an abstract idea."59
The court also discussed the second prong of Alice. The court held that to the extent the patent was directed to an abstract idea, "the technology embodied in the `828 patent improves efficiency, and therefore, is inventive..."60
In Trustees of Columbia University v. Symantec Corporation, Judge Lauck denied a motion for judgment on the pleadings based on 101.61 Like Judge Davis, she held that the subject patent was not directed to an abstract idea, and therefore, there was no need to reach the second step of the Alice framework.62 The patents-insuit related to computer virus scanning. In holding that the patents were not directed to ineligible subject matter, the court explained: "This conclusion stems from the common specification of the 115 Patent and the 322 Patent which demonstrates that these patents improve computer functionality by enhancing virus scanning through the use of innovative models and increases to computer efficiency."63
Salwan v. Iancu also involved 101, but in a different context. 64 In that case, the plaintiff filed suit against the United States Patent and Trademark Office (USPTO) seeking a judgment that he was entitled to a patent on his invention, which was an electronic system for communications between physicians and patients. This was plaintiff's second attempt at obtaining a patent. The PTAB rejected the first application under 101, and the Federal Circuit affirmed. After the PTAB rejected the second application, plaintiff filed suit in the Eastern District of Virginia. The parties filed cross-motions for summary judgment, and Judge Leonie M. Brinkema granted judgment in favor of the USPTO. 65
The court described the application as "generally directed to the abstract idea of `billing' and `organizing patient health information.' "66 The court held that the claims "represent `fundamental economic and conventional business practices,' which are often held to be abstract."67 The court further held that the application "lacks an inventive concept that would render it patent-eligible."68 It was not enough to include "terms like a generic network, computer program, and central server."69 The court "concluded that the examiner and PTAB's
53 Id. 54 Id. at 679.
55 Id. 56 Id. (citations omitted). 57 Id. at 680. 58 Id. (emphasis in original).
59 Id. 60 Id. at 681.
61 No. 3:13cv808, 2019 WL 6138419, *6 (E.D. Va. Nov. 19, 2019). 62 Id. at *8. 63 Id. at *6. 64 No. 1:18-cv-1543(LMB/TCB), 2019 WL 4144308 (E.D. Va. Aug. 30, 2019). 65 Id. at *1. 66 Id. at *5.
68 Id. 69 Id. (internal quotations omitted).
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determination that the `000 Application covered patentineligible subject matter under 35 U.S.C. 101 was supported by substantial evidence" and granted summary judgment for the USPTO.70
We round out our discussion of patent cases with decisions addressing a variety of issues, including collusive assignment and its impact on jurisdiction, patent venue post-TC Heartland and enhanced damages.
In E.I. du Pont de Nemours & Co. v. AGFA NV, the court addressed the issue of whether a patent assignment was collusive, such that it could not be used as a basis to defeat the court's jurisdiction.71 In that case, DuPont filed a declaratory judgment action against Agfa-Gevaert NV (Agfa-Parent) and Agfa NV (Belgian Subsidiary), in which it sought, among other things, a declaration of invalidity and noninfringement regarding the `759 patent.72 DuPont initiated the action in the Eastern District of Virginia pursuant to 35 U.S.C. 293, which provides for personal jurisdiction in the district over foreign patent owners who have not designated an agent for service of process in the United States.73 At the time the case was filed, the patent was owned by Belgian Subsidiary. However, before filing a responsive pleading, Belgian Subsidiary transferred the patent to Agfa Corporation, a Delaware company wholly owned by Agfa Parent (Delaware Subsidiary).74 Agfa Parent and Belgian Subsidiary then filed a motion to dismiss for lack of personal jurisdiction. They also challenged the court's subject matter jurisdiction because there was no
case or controversy between the parties since Belgian Subsidiary did not own the patent.75
The motions were originally decided by Magistrate Robert J. Krask on a Report and Recommendation. The Magistrate recommended that the motion be granted as to the Agfa Parent based on a lack of personal jurisdiction, but denied as to the Belgian Subsidiary.76 Specifically, the Magistrate held that the assignment to Delaware Subsidiary was collusive and could not defeat jurisdiction over Belgian Subsidiary.77 Belgian Subsidiary objected to the Magistrate's ruling on several grounds. Judge Morgan overruled the objections, and adopted the Magistrate's Report and Recommendation.78
Belgian Subsidiary argued that it was improper for the court to consider its motive in making the assignment because the assignment was complete, i.e., Belgian Subsidiary did not reserve any rights in the patent.79 Judge Morgan acknowledged the split of authority on this issue, but citing to Fourth Circuit case law, held that motive is a factor to be considered even where the transfer is absolute.80
70 Id. at *7. 71 No. 2:18cv326, 2019 WL 279989 (E.D. Va. Jan. 22, 2019). 72 Id. at *4. 73 Id. at *8. 74 Id. at *4.
75 Id. at *4*5. 76 Id. at *5. 77 Id. 78 Id. at *14. 79 Id. at *6. 80 Id. at *7.
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Belgian Subsidiary also argued that the assignment would permit DuPont to pursue its claims in federal court in Delaware, where an action between DuPont and Delaware Subsidiary was already pending. The court held that this was irrelevant, stating: "Agfa Defendants cite no authority for the proposition that collusion to defeat jurisdiction in one federal court is rendered acceptable by the creation of jurisdiction in another federal court."81
Further, Belgian Subsidiary argued that the Magistrate improperly considered the corporate relationship between Belgian Subsidiary and Delaware Subsidiary in evaluating whether the assignment was collusive. Judge Morgan acknowledged a "circuit split on whether a corporate relationship between assignor and assignee creates a presumption of collusion."82 However, Judge Morgan noted that the Magistrate did not apply any such presumption. Rather, the Magistrate simply considered the corporate relationship as part of the totality of circumstances. The court held that the relationship was a proper consideration and overruled Belgian Subsidiary's objection.83
Next, Belgian Subsidiary argued that even if the court could exercise personal jurisdiction over it, the court still lacked subject matter jurisdiction because there was no case or controversy between the parties. The court described the issue as "whether a collusive transfer can deprive a court of subject matter jurisdiction by rendering a declaratory judgment controversy moot."84 The court, relying on cases from other jurisdictions, held that "a collusive transfer to defeat subject matter jurisdiction
81 Id. at *7. 82 Id. 83 Id. at *8. 84 Id.
may be held invalid."85 Thus, the court overruled Belgian Subsidiary's objection.
Finally, Belgian Subsidiary argued that the case could not proceed without Delaware Subsidiary--the current owner of the patent. The court rejected this argument and explained: "A finding of collusion negates the legitimacy of the assignment for purposes of this case."86 It is "as if the assignment to Delaware Subsidiary never happened."87 Thus, the absence of Delaware Subsidiary did not prevent the case from proceeding to judgment.88
In BASF Plant Science, LP v. Commonwealth Scientific Industrial Research Organization, the court considered a motion to dismiss for lack of personal jurisdiction and improper venue.89 Judge Morgan began his analysis of the venue issue by noting that "patent venue for domestic corporations is exclusively governed by 28 U.S.C. 1400(b)."90 Pursuant to that statute, venue is proper where the defendant resides or "where the defendant has committed acts of infringement and has a regular and established place of business."91 In this case, Cargill, the party challenging venue, resided outside of Virginia, thus the case turned on the second prong of the venue statute.92
85 Id. at *9. 86 Id. 87 Id. 88 Id. 89 No. 2:17-cv-503, 2019 WL 2017541 (E.D. Va. May 7, 2019). 90 Id. at *4 (citing TC Heartland LLC v. Kraft Foods Grp., 137 S. Ct. 1514, 1519 (2017)). 91 Id. (quoting 28 U.S.C. 1400(b)). 92 Id. at *4.
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Judge Morgan held that the court could exercise venue over Cargill. In reaching this decision, the court made two key rulings. First, the court stated that it "does not believe that a nexus between the acts of infringement and the regular and established place of business is required by the statute."93 Thus, so long as there is an act of infringement in the district, and the defendant has a regular and established place of business in the district, the venue provision is satisfied.94 Second, the court held that an act of infringement in the district by a closely related entity could be attributed to the defendant for purposes of the venue statute.95 In this case, there was no question that Cargill had a regular and established place of business in the district, so the case turned on whether there was an "act of infringement."96
Cargill had partnered with BASF to research, develop and monetize a canola seed with certain properties.97 In furtherance of these efforts, BASF deposited the seeds with the American Type Culture Collection (ATCC) in Manassas, Virginia.98 The court held that the act of depositing the seeds constituted "use" of the seeds, and that this act constituted an "act of infringement."99 Moreover, the court attributed this act of infringement to Cargill for purposes of the venue analysis "given the partnership and close connection of the entities."100
The last patent case we reviewed is TecSec, Inc. v. Adobe Inc.101 In that case, Judge O'Grady granted Adobe's judgment as a matter of law on TecSec's claim for willful infringement.102 TecSec's claim for enhanced damages was based solely on Adobe's post-suit conduct. The court recognized a split in authority as to whether postsuit conduct alone can support enhanced damages.103 However, the court did not take a position on this legal issue, instead finding that Adobe's conduct did not rise to the level of egregious misconduct sufficient to support enhanced damages.104
93 Id. at *5. 94 Id. 95 Id. 96 Id. 97 Id. at *1. 98 Id. at *2. 99 Id. at *5.
101 No. 1:10-cv-115, 2019 WL 1233882 (E.D. Va. Mar. 14, 2019). 102 Id. at *1.
103 Id. 104 Id. at *2.
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As noted earlier, Sony Music Entertainment v. Cox Communications, Inc. is a significant copyright infringement case that resulted in a $1 billion jury verdict against Cox in December 2019.105 We expect there will be post-trial activity in 2020, followed by an appeal. Our review focuses on the court's decision on the parties' cross-motions for summary judgment, issued shortly before the trial.106
The plaintiffs (collectively referred to as Sony) in that case are various record companies that "produce, manage, acquire, sell, and license sound recordings and musical compositions and their copyrights."107 The defendant, Cox Communications, provides internet service to residential and commercial customers throughout the United States. Cox has a department that focuses on abuse of its services, including copyright infringement. Cox sends notices of infringement to its users through its Cox Abuse Tracking System (CATS).108
Sony, through the Recording Industry Association of America (RIAA), retained MarkMonitor, an antipiracy company, to identify potentially infringing file-sharing of its works on peer-to-peer (P2P) networks. MarkMonitor accomplished its mission by participating in P2P networks, engaging with potentially infringing users, gathering information about the users and generating infringement notices. MarkMonitor then sent the infringement notices to Cox for Cox to follow up with the users.109
105 No. 1:18-cv-950-LO-JFA (E.D. Va.) (jury verdict issued December 19, 2019). 106 1:18-cv-950-LO-JFA, 2019 WL 6357963 (E.D. Va. Nov. 27, 2019). 107 Id. at *1. 108 Id. 109 Id.
The lawsuit focuses on individual Cox residential and business accounts that received three or more infringement notices. These accounts are alleged to have infringed 7,068 copyrighted sound recordings and 3,452 copyrighted musical compositions during the relevant time period. Sony asserted claims against Cox for both contributory infringement and vicarious liability for infringement that "occurred by unauthorized download and distribution of files using Cox's network."110
The parties filed cross-motions for summary judgment. Although the court deferred many of the issues, Judge O'Grady ruled on two important issues: copyright ownership and the knowledge necessary to establish contributory infringement.111
On the issue of ownership, Judge O'Grady held that Sony's evidence was sufficient to establish a presumption of ownership. Sony supported its claim to ownership with declarations, together with certificates of registration, excerpts from the US Copyright Catalog, and merger and acquisition agreements and related contracts. 112 Cox challenged the sufficiency of Sony's evidence, but did not offer any counter-evidence.113 Thus, the court held that Cox had failed to rebut the presumption. Accordingly, the court granted Sony's motion for summary judgment and held that "[c]opyright ownership for the works in suit is not an issue for trial."114 The court excluded from its ruling 78 works which were registered after the infringement period.115
110 Id. 111 Id. at *2. 112 Id. at *4. 113 Id. 114 Id. at *59. 115 Id. at *8.
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The court then tackled the issue of "what constitutes knowledge of infringement in the context of contributory infringement of a copyright" including "whether the infringement notices Cox received from RIAA, through its agent MarkMonitor, were sufficient in conveying that requisite knowledge."116
The court started its analysis of this issue with reference to the Fourth Circuit's recent decision in BMG Rights Management (US) LLC v. Cox Communications, Inc.117 In that case, the Fourth Circuit held that "contributory liability can be based on willful blindness but not on recklessness or negligence."118 Pursuant to this standard, "[s]elling a product with both lawful and unlawful uses suggests an intent to cause infringement only if the seller knows of specific instances of infringement, but not if the seller only generally knows of infringement."119 In the context of an internet service provider such as Cox, " `generalized knowledge' of infringement somewhere on an ISP's network is insufficient to establish contributory infringement liability, and the proper standard requires a defendant to have specific enough knowledge of infringement that the defendant could do something about it."120
Applying this standard, Judge O'Grady held that the RIAA notices established that Cox possessed the requisite knowledge as a matter of law. The notices included all information required under the Digital Millennium Copyright Act (DMCA), including the time stamp of the infringement detection, the identity of the Cox user (by IP address) and information sufficient to identify the work infringed.121 Based on the information provided, the notice was specific enough for Cox to do something, e.g., investigate the user's activity and/or suspend or terminate the accounts.122 The court rejected Cox's argument that each notice only identified a single work infringed by the user, and thus was not specific as to other works that the user may have infringed. The court held that once Cox had knowledge of the particular user and an instance of infringement, it had sufficient knowledge to take action.
"The standard is focused on the subscriber, not the particular works infringed."123
Cox also argued that the evidence was insufficient to hold it liable for any infringement by any end user of a Cox business account. In this regard, Cox argued that the RIAA notice only identified the IP address for the business account, not the individual person at the business that engaged in the infringing activity. Thus, Cox argued that RIAA notice was too generalized to support a claim for contributory infringement. The court rejected this argument and explained: "Ultimately, the characterization of an IP address as a residence or a business does not affect either the level of specificity in the notice or Cox's ability to take action in response."124
Cox also argued that it could not be held liable for any infringement by a Cox business account because Sony did not identify the direct infringer. In support of this argument, Cox relied on a Ninth Circuit copyright infringement case, Cobbler Nevada, LLC v. Gonzales, which was filed against an individual subscriber.125 The subscriber, Thomas Gonzales, owned an adult foster care home in Portland, Oregon. The evidence in the case cast doubt on whether he was the infringer.126 The court in Cobbler held that the individual subscriber could not be held secondarily liable without some information regarding the identity of the direct infringer.
Based on Cobbler, Cox argued that Sony was required to identify the end user that engaged in direct infringement.127 Judge O'Grady distinguished Cobbler as having no application to a case against a service provider, which, by its very nature, is a "large-scale attempt to impose indirect liability where enforcement against direct infringers is both impractical and improbable."128 The court explained: "Enforcement against direct infringers in the instant case is impractical because of the sheer volume of alleged infringers and infringed works.... The Cobbler case was about one movie; this case is about more than 10,000 works."129 Judge O'Grady also noted
116 Id. at *9. 117 881 F.3d 293 (4th Cir. 2018). 118 Id. at 309. 119 Id. at 311. 120 2019 WL 6357963, *9 (citing BMG, 881 F.3d at 31112 (emphasis in original)). 121 Id. at *9. 122 Id. at *1011.
123 Id. at *1112. 124 Id. at *14. 125 901 F.3d 1142 (9th Cir. 2018). 126 Id. at 1145. 127 2019 WL 6357963, *12. 128 Id. at *13.
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that Cox was in the best position "to identify direct infringers beyond the Cox Business IP addresses" and it had produced no evidence that it had made any such effort.130 For all of these reasons, the court permitted the claim based on infringement by the business accounts to proceed.
In addition to the decision discussed above, we also reviewed three additional copyright cases, which addressed procedural issues such a personal jurisdiction, venue and removal/preemption.
The first case is UMG Recordings, Inc. v. Kurbanov.131 In that case, the plaintiffs were 12 US-based record companies that filed a copyright infringement suit against a Russian national living in the Russian Federation. The defendant operated two websites "devoted to ` stream ripping' which is a process by which users may `rip' a file from a streaming platform and convert it to a downloadable file format, such as an mp3."132 The defendant filed a motion to dismiss the lawsuit based on a lack of personal jurisdiction, and Judge Claude M. Hilton granted the motion. The court analyzed whether the defendant's contacts with Virginia and the United States through the websites were sufficient to constitute "purposeful availment" of the privilege of doing business in Virginia or the United States.133 The court noted that a state may exercise jurisdiction over a nonresident if the nonresident "(1) directs electronic activity into the state, (2) with the manifested intent of engaging in business or other interactions within the state, and (3) that activity creates, in a person within the state, a potential cause of action cognizable in the state's
130 Id. at *14. 131 362 F. Supp. 3d 333 (E.D. Va. 2019) (Appeal Noted). 132 Id. at *335. 133 Id. at *338.
courts."134 The court further explained that interactive websites are more likely to result in jurisdiction, whereas passive websites typically do not support jurisdiction.135
The court applied this test to the facts and held that jurisdiction was lacking. The court described the websites as "semi-interactive." Users share information with the host by agreeing to certain terms and conditions, and files are made available to the user for downloading. But, "there is not a significant or prolonged engagement between the user and the websites."136 The user does not create an account, sign in or register to use the websites. Moreover, the websites are not based on a commercial contract with the user, and there is no fee to use the websites. The only money that the defendant earns from the websites is through the sale of advertising space to a broker in the Ukraine.137 Further, defendant did not advertise the websites in Virginia or provide specific instructions or advice to users in Virginia. The only contact users in Virginia had with the websites was unilateral in nature. To the extent the websites track the location of the user, "tracking the location of a user does not show targeting of the user or their location; instead it is merely a recording of where the user's unilateral act took place."138 Based on this analysis, the court dismissed the complaint.
134 Id. (quoting, ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d 707, 714 (4th Cir. 2002)).
135Id. 136Id. at 339. 137 Id. 138 Id. at 339340.
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The second case, Finch v. Weigh Down Workshop Ministries, Inc.,139 concerns proper venue in a declaratory judgment copyright case. The plaintiff was the author of a diet book that she claimed to have researched and written in Virginia Beach, Virginia. The defendants issued a cease and desist letter to plaintiff, in which they alleged that plaintiff's book infringed their copyright. In response, plaintiff filed a declaratory judgment action seeking a declaration of noninfringement. The defendants sought to transfer the case to the Middle District of Tennessee, where they maintained their principal place of business. Judge Morgan noted that "venue in copyright cases is usually governed by 28 U.S.C. 1400. However, because this is a declaratory judgment action, the general venue statute applies."140 Pursuant to the general venue statute, the court held that "a substantial part of the events giving rise to the claim occurred in this District," including plaintiff's research and drafting of the book in Virginia Beach.141 Thus, the court denied defendant's motion to transfer.
The final case is Futrend Technology Inc. v. Microhealth LLC.142 In that case, the plaintiff filed an amended complaint in a state court action which alleged that the defendants violated the Virginia Computer Crimes Act by copying the plaintiff's computer files that contained confidential and proprietary business information.143 The defendant removed the action to federal court, based on preemption under the Copyright Act. The plaintiff then sought leave to amend to delete the Computer Crimes Act claim, and to remand. Judge O'Grady granted the plaintiff's motion to amend and remanded the case. In granting remand, the court noted that plaintiffs had not intended to assert a federal claim, and it was debatable to what extent the allegedly stolen data was subject to any copyright.144 The amendment avoided any preemption argument, and placed the case back in the state court consistent with plaintiff's intent.
139 No. 2:18cv284, 2019 WL 1243729 (E.D. Va. Mar. 18, 2019). 140 Id. at *2. 141 Id. at *3.
142 No. 1:19-cv-00361, 2019 WL 1966636 (E.D. Va. May 2, 2019). 143 Id. at *1. 144 Id. at *23.
2019 Eastern District of Virginia IP Year in Review / 14
Next we turn to an analysis of two cases that were appealed from the Trademark Trial and Appeal Board (TTAB).
The first case, Combe Inc. v. Dr. August Wolff GmbH & Co. KG Arzneimittel, arose out of the defendant's effort to obtain a trademark on VAGISAN for use with feminine products.145 Plaintiff Combe, as the owner of the VAGISIL mark used with similar products, filed an opposition to the application. The TTAB granted the registration, and Combe appealed.146 Judge T.S. Ellis III reversed the TTAB decision and held that the defendant's "VAGISAN mark is not registrable."147
The court began its analysis by stating that "[t]he Lanham Act provides that denial of an application to register a mark is warranted when the mark `so resembles a mark registered in the Patent and Trademark Office ... as to be likely, when used on or in connection with the goods of the applicant, to cause confusion, or to cause mistake, or to deceive.' "148 The court then listed the "nine factors [that] guide the determination whether an appliedfor mark is likely to cause confusion with the registered mark."149
These factors are: 1. t he strength or distinctiveness of the senior mark
as actually used in the marketplace;
2. the similarity of the two marks to consumers;
3. t he similarity of the goods or services that the marks identify;
4. the similarity of the facilities used by the markholders;
5. the similarity of advertising used by the markholders;
6. the defendant's intent;
7. actual confusion;
8. the quality of the defendant's product; and
9. the sophistication of the consuming public.150
Before applying the factors, the court addressed the parties' dispute over "whether the likelihood of confusion analysis ... should be based on the VAGISAN mark as depicted and described in the application or as used in the marketplace."151 The defendant argued that the mark should be considered in the context of the packaging and trade dress on which it would be included, rather than as it was depicted on the trademark application in plain letters. The court rejected the defendant's argument. The court held that because the only issue was whether the mark could be registered, the likelihood of confusion analysis "considers only the descriptions of VAGISAN and the limitations on usage of the mark that are included in defendant's application, without taking into account any narrower uses of the VAGISAN mark in the marketplace."152
145 382 F. Supp. 3d 429 (E.D. Va. 2019). 146 Id. at 435438. 147 Id. at 467. 148 Id. at 444 (citations omitted). 149 Id.
150 Id. at 445. 151 Id. 152 Id. at 446.
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After resolving this threshold issue, the court turned to application of the nine factors. The court discussed the strength of the VAGISIL mark at length, evaluating both the conceptual strength and commercial strength of the mark.153 As to the conceptual strength, the court held that the mark was suggestive rather than descriptive. The prefix of the mark suggested a part of the female body, but didn't describe the purpose or use of the product. And, the ending--"sil"--had no meaning.154 However, even though the mark was suggestive, its conceptual strength was diminished because the defendant showed that there were at least 66 third-party marks containing "vagi" as a prefix.155 The court held that "this evidence of similar third-party marks serves to weaken the conceptual strength of VAGISIL because if the `mark were truly a distinctive term, it is unlikely that so many other businesses in the ... industry would independently think of using the same mark or similar variants of it.' "156
On the issue of the mark's commercial strength, the court found that the mark enjoyed considerable commercial strength. This was supported by sales, marketing and advertising data, evidence of unsolicited media attention, and a survey conducted by Combe's expert that "reported a net awareness rate of 85%" of the VAGISIL mark."157 The defendant argued that the existence of similar third-party marks diminished the commercial strength of the mark, but the court rejected this argument because the other marks were "commercially insignificant" as compared to the VAGISIL mark.158 Thus, the court concluded that even if the conceptual strength of the mark was diminished, "VAGISIL's commercial strength is clearly sufficient here to demonstrate that VAGISIL is a strong, distinctive mark overall" and this factor "weighs heavily in favor of plaintiff."159
The court then turned to the similarity of the two marks. The court held that "[c]ompared as a whole, the marks VAGISIL and VAGISAN are closely similar in sight and sound."160 The defendant argued that the court should focus the comparison on the ending of the mark, rather than the descriptive prefix "vagi." The court refused to do so, however, stating that "this argument conflicts with the `anti-dissection' rule that the Fourth Circuit has adopted with respect to analyzing the similarity of marks."161 This rule requires the court to compare the marks as a whole, rather than their component parts.162 The court also found the other similarity factors to weigh in favor of plaintiff, including the similarity of the goods or services that the marks identify, the similarity of the facilities used by the markholders and the similarity of the advertising used by the markholders.163
The court next considered the defendant's intent. There was no evidence that the defendant sought to use the VAGISAN mark to confuse consumers; however, the court noted that this factor is entitled to little weight.164
The court then engaged in a detailed discussion of actual confusion, stating that like the strength of the mark, "actual confusion is an important factor that weighs heavily in the overall likelihood of confusion analysis."165 The court acknowledged there was no anecdotal evidence of confusion, because the defendant had refrained from using the VAGISAN mark in the marketplace during the pendency of the trademark proceedings.166 However, the plaintiff provided survey evidence through an expert which provided "persuasive empirical evidence of actual confusion between the parties' marks."167 The survey showed a 19 percent net confusion rate.168 The defendant challenged the results of the survey, because the consumers were not shown the mark as it would appear on packaging and with the defendant's trade dress. The court rejected this argument because, as stated earlier in the opinion, the analysis must focus solely on the mark as it appears in the trademark application when the only issue is whether the mark can be registered.169
153 Id. at 446447. 154 Id. at 448. 155 Id. 156 Id. (citations omitted). 157 Id. at 449451. 158 Id. 159 Id. at 456.
160 Id. 161 Id. at 457 (citations omitted). 162 Id. 163 Id. at 457459. 164 Id. at 460. 165 Id. 166 Id. at 461. 167 Id. at 462. 168 Id. 169Id. at 463.
2019 Eastern District of Virginia IP Year in Review / 16
The defendant also challenged the control used by the expert (VAGIPUR), but the court held that the control was sufficient.170
The court concluded its discussion by noting that the eighth factor--the quality of the defendant's product-- was not applicable, and that the ninth factor--the sophistication of the consumers--was neutral.171
Based on this analysis, the court held that "the evidence compels the conclusion that defendant's VAGISAN mark is not registrable and that the ruling of the TTAB dismissing plaintiff's opposition to defendant's application to register the VAGISAN mark must be reversed."172
RXD Media, LLC v. IP Application Development also involved a very well-known mark--IPAD.173 Apple already owned several registrations for the IPAD mark. However, when it sought to register the mark for use in various services, including cloud storage and computing, RXD Media filed an opposition, claiming prior use in this space. RXD had operated a website known as IPAD.mobi since 2007, which was an online platform for notetaking. In 2016, RXD relaunched the website as IPADtoday.com, offering broader services, including cloud storage.174
The TTAB rejected RXD's opposition and held that RXD's mark was IPAD.mobi--not IPAD. The TTAB further held that even if RXD's mark was IPAD, it was descriptive, and RXD had failed to demonstrate it had achieved secondary meaning.175
RXD appealed the TTAB's decision to the district court, and also challenged Apple's applications by claiming that "Apple lacked a bona fide intent to use the IPAD service mark in commerce for anything other than tablet computers." 176 Apple asserted counterclaims for trademark infringement, false designation of origin and palming off.177
The parties filed cross-motions for summary judgment, and Judge O'Grady granted Apple's motion in all respects. The court affirmed the TTAB's decision, and held that Apple had demonstrated a bona fide intent to use the IPAD mark for the services claimed in the subject applications.178 Apple presented objective evidence to support its intent, including "its license agreement for the IPAD mark, which covers the applied-for services" and documentation showing "it had the capacity to produce the applied-for services."179 On Apple's counterclaim for infringement, the court easily found that Apple had established a likelihood of confusion given the strength of Apple's mark, the similarity of the two marks, the similarity of the services at issue and their advertising channels.180 Apple also produced survey evidence that showed a 27 percent confusion rate.181 The court noted this was well above the 1012 percent rate that is "sufficient to demonstrate actual confusion."182 Thus, not only did the district court affirm the TTAB, but it granted Apple's motion for summary judgment against RXD on Apple's affirmative claims, including infringement and false designation of origin.
170Id. at 464. 171Id. at 465466. 172Id. at 467. 173377 F. Supp. 3d 588 (E.D. Va. 2019) (Appeal Noted). 174Id. at 590. 175Id. at 590591.
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176 Id. at 591.
177 Id. 178Id. at 594. 179Id. 180Id. at 594595. 181Id. at 595. 182Id. (citations omitted).
We complete this year's review with a discussion of two trade secret cases. In both cases, the defendant filed a motion to dismiss, arguing that the plaintiff had failed to provide sufficient detail to support the trade secret claim, and in both cases the motion was denied. This suggests the court may be taking more of a "wait and see" approach with trade secrets claims at the pleadings stage, but we do not expect this lenience to carry over to the summary judgment stage, at which point the plaintiff should be prepared to prove each element of the claim with the necessary specificity to avoid an adverse judgment before even reaching the jury.
Oros, Inc. v. Dajani arose out of a dispute between a company and its president.183 Oros served as the United States seller and distributor of instruments used to measure noise and vibration, manufactured by a French company, Oros SASU. Oros SASU owned 80 percent of Oros, and the other 20 percent was owned by Dajani. Dajani also served as president of Oros. Dajani was terminated from his position in January 2019, but he refused to cede his role. He "retained control" over the company's "computer server, equipment, financial records, and bank accounts, as well as the access codes to cloud-based services."184 He continued to access his email accounts, he refused to return information regarding pricing structure and customer and pricing lists, and he continued to hold himself out as president of the company. Oros alleged that Dajani refused to return this information in order to maximize a buyback of his 20 percent interest in the company.185
183No. 1:19-cv-351 (LMB/IDD), 2019 WL 2361047 (E.D. Va. June 4, 2019). 184Id. at *2. 185Id.
Oros filed suit against Dajani for, among other things, misappropriation of trade secrets under the federal Defend Trade Secrets Act and the Virginia Uniform Trade Secrets Act.186 Dajani moved to dismiss on the grounds that the complaint "fails to allege sufficient facts plausibly indicating that Dajani is liable for trade secret misappropriation."187 Judge Brinkema denied the motion.188
First, Dajani argued that the complaint "fails to identify any trade secrets with requisite factual specificity."189 The court rejected this argument and held that it "shortchanges the entirety of the factual allegations in the complaint, which alleges that despite his termination by the board of directors, Dajani has retained control over much of [sic] all of the information housed in Oros, Inc.'s physical offices and computer servers."190 The court noted that this included customer information, pricing information and sales history, all of which can constitute a trade secret.191 The court further explained that the "complaint deals not with an isolated set of documents or information but rather with the entire contents of the company's office."192 The court concluded that the complaint "is fairly read to include all of the valuable customer and pricing information collected by a distributor company over its decades of work" and "[d]rawing all reasonable inferences in plaintiff's favor, that information is subject to trade secret protection."193
186Id. at *1. 187Id. at *2. 188Id. at *5. 189Id. at *3. 190Id. 191Id. 192Id. 193Id.
2019 Eastern District of Virginia IP Year in Review / 18
Dajani also argued that Oros failed to state a claim because the complaint did not allege Dajani obtained the trade secrets by "fraud, artifice, or deception."194 The court held that no such allegation was required. Rather, "[t]o survive a motion to dismiss, Oros Inc. need only plausibly plead that Dajani acquired the trade secrets at issue by `improper means.' "195 The court held that Dajani's refusal to return the information to Oros satisfied this element of the claim. Thus, the court denied Dajani's motion to dismiss the trade secret claims.196
Dajani also moved to dismiss a stand-alone count in the complaint which sought injunctive relief. The court granted this part of the motion, stating that "[a]n injunction is a form of remedy, not an independently cognizable cause of action."197
Trans-Radial Solutions, LLC v. Burlington Medical, LLC, involved a dispute between a product manufacturer/seller and a former distributor.198 The plaintiff asserted several claims against the defendants, including a claim for misappropriation under the federal Defend Trade Secrets Act. The defendant moved to dismiss the trade secret claim, and Judge Robert G. Doumar denied the motion.199
The court held that plaintiff had adequately pled the existence of a trade secret by identifying "confidential lists of potential and actual TRS customers." 200 The court further held the plaintiff had sufficiently alleged "reasonable measures to keep its trade secrets confidential" by alleging that "it has restricted access to its alleged trade secrets and that it only disclosed such secrets to Defendants on a need-to-know basis."201 The court also held that the plaintiff had pled that the "trade secrets have economic value ... by describing how Defendants allegedly used its customer list to poach a TRS customer." 202 Finally, the court held that plaintiff properly pled "misappropriation" by alleging the defendants used the trade secrets without plaintiff's express or implied consent knowing that defendants acquired the trade secrets through a contractual relationship with plaintiff "which gave rise to a duty to maintain the secrecy of such trade secrets and to only use such secrets for the limited purpose of fulfilling its duties as the distributor of TRS's products."203
The court also denied the motion to dismiss filed by the CEO of one of the defendants. The court held that he could be held liable in his individual capacity if he engaged in "intentionally tortious actions on behalf of the corporation."204
194Id. at *5. 195Id. (citing 18 U.S.C. 1839(5) and Va. Code. 59.1-336). 196Id. at 463. 197Id. at 463. 198No. 2:18-cv-656, 2019 WL 3557879 (E.D. Va. Aug. 5, 2019). 199Id. at *1517.
200 Id. at *16. 201Id. 202Id. at *17. 203Id. 204Id. at *5.
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In 2019, the Eastern District of Virginia did not shy away from rendering prompt and decisive rulings on important questions of intellectual property law. The District's rulings discussed above reaffirm its reputation for deciding key questions on the cutting edge of intellectual property law with expedition, keen awareness of prior precedent and careful and well-reasoned analysis of the parties' arguments. Litigants in these types of cases can rely upon the District to adhere strictly to the law, to be demanding with respect to the parties' presentation of the evidence and arguments and to demonstrate fidelity to the core principle of speed and efficiency in moving cases to judgment.
AUTHORS / EDITORS
Wendy C. McGraw
Counsel, Norfolk | Eastern District of Virginia IP Year in Review, Editor [email protected] | +1 757 640 5336
Charles D. Ossola
Partner, Washington, DC | Eastern District of Virginia IP Year in Review, Editor [email protected] | +1 202 955 1642
2019 Eastern District of Virginia IP Year in Review / 20
The chart below summarizes the number of intellectual property cases filed in the EDVA by judge.
JUDGE Allen, Arenda Wright Alston, Rossie D. Jr. Brinkema, Leonie M. Davis, Mark S. Doumar, Hon. Robert G. Ellis, T. S. III. Gibney, John A. Jr. Hilton, Claude M. Hudson, Henry E. Jackson, Raymond A. Mary Hannah Lauck Henry Coke Morgan Jr. O'grady, Hon. Liam Payne, Robert E. Smith, Rebecca Beach Trenga, Anthony J. TOTALS
DIVISION Norfolk Alexandria Alexandria Norfolk Norfolk Alexandria Richmond Alexandria Richmond Norfolk Richmond Norfolk Alexandria Norfolk Richmond Alexandria
PATENT 2 2 4 1 1 0 2 1 0 1 2 0 4 0 0 1 21
TRADEMARK COPYRIGHT TOTAL 2 04 5 5 12 10 8 22 1 02 0 23 3 10 13 5 5 12 9 11 21 2 13 1 02 1 14 1 12 11 12 27 0 11 1 01 6 18 25 58 75 154
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