News & Analysis as of

Covenant Not to Sue

Failure to Provide an Unconditional Covenant Not to Sue Kept Case and Controversy Alive

In ArcelorMittal v. AK Steel Corp., [2016-1357] (May 16, 2017), the Federal Circuit affirmed the summary judgment invalidating claims 24 and 25 of U.S. Patent No. RE44153....more

Fresh From the Bench: Precedential Patent Cases From the Federal Circuit

In Mylan v. Aurobindo the Circuit affirms the grant of a preliminary injunction based upon the infringement of one of the three patents in suit. However, the panel reverses the injunction as to the other two patents based on...more

Finding of Exceptionality Leaves Unsuccessful Infringement Plaintiff Liable for Over $50 Million in Attorney Fees and Costs

Needless to say, a finding of exceptionality under 35 U.S.C. § 285 can have crippling consequences. Just ask Rembrandt Technologies, LP, which recently was slapped with an order to pay the prevailing defendants in a...more

Case Summary - PPG Industries, Inc. v. Valspar Sourcing, Inc.

by Knobbe Martens on

In a non-precedential decision, the Federal Circuit found that appellant PPG had Article III standing to file an appeal from two inter partes reexaminations. However, the Court found that appellee Valspar’s subsequent...more

Judge Cote Holds Attorneys Liable for Trying to Keep a “Baseless” Case in E.D. Tex. that Sought Nuisance Payments from Numerous...

On December 8, 2016, District Judge Denise Cote (S.D.N.Y.) granted defendants Gust, Inc.’s (hereinafter, “Gust”) motion for attorneys’ fees and costs under 35 U.S.C. § 285 and 28 U.S.C. § 1927 against plaintiff AlphaCap...more

Plaintiff Granted Dismissal Based on Covenant Not to Sue Even With Motion to Dismiss for Lack of Patentable Subject Matter Pending

The plaintiff, Shipping and Transit, LLC ("Plaintiff"), filed a patent infringement action against Defendant Neptune Cigars, Inc. ("Defendant"), for infringement of U.S. Patent Nos. 6,415,207 ("the '207 Patent") and 6,763,299...more

District Court Denies Leave to Amend to Add Implied License Affirmative Defense Where Motion for Leave Was Filed Just Two Months...

Google, Inc. and YouTube, LLC (collectively "Google") filed a motion for leave to amend their answer to include an implied license affirmative defense. Because Google filed the motion to amend its answer more than two months...more

As Part of Protective Order, District Court Orders Prosecution Bar and Covenant Not to Sue for New Patents Acquired by Patent...

In this patent infringement action, a dispute arose between Plaintiff Blackbird Tech LLC ("Blackbird") and the defendants over the terms of proposed protective orders to govern the use of confidential information produced....more

In Onboard Wi-Fi Case, Covenant Not To Sue Has Wide Range

Judge Jeffrey Alker Meyer of the District of Connecticut recently released an opinion that is significant to litigants on either side of a covenant not to sue. In a complex case with a host of claims and counterclaims...more

Covenant Not to Sue Insufficient to Warrant Dismissal of Counterclaims Where Covenant Contained Reservation of Rights

The plaintiff filed a motion to dismiss the defendants' patent invalidity counterclaims for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. Rule 12(b)(1) because the plaintiff withdrew its patent infringement...more

Employment Law Commentary - Volume 28, Issue 2 - February 2016

by Morrison & Foerster LLP on

Separation Anxiety: Best Practices for Employee Severance Agreements: Employers deal with employee separations all the time. Back when I was an HR manager for a major airline, when it came time for a layoff or other...more

Wisp of a Possibility of Gas Kit Lawsuit May Establish Declaratory Judgment Jurisdiction

In a recent case concerning propane gas kits used as an alternative fuel conversion system, the District of Massachusetts found that declaratory judgment jurisdiction exists, even though the parties in the case had entered...more

Court Of Chancery Calculates Mootness Benefit In Post-Trulia Decision

by Morris James LLP on

This is an interesting decision for two reasons. First, the decision awards a mootness fee for disclosures and changes to deal protection measures in a merger gone bust. Thus, the opinion is useful precedent in the...more

Federal agencies attack employment agreements, and what you can do about it: 8 steps to consider

by DLA Piper on

The US Securities and Exchange Commission recently caused shockwaves when it announced its first enforcement action against a company for using an allegedly improper confidentiality agreement during internal investigations....more

Attorney Fee Motions Are Denied

by Morris James LLP on

Two business days before a hearing on claim construction and summary judgment, plaintiff provided defendants with covenants not to sue, without compensation. All claims and counterclaims asserted by plaintiff were dismissed...more

Myriad Throws in the Towel

In the aftermath of the Supreme Court's decision in AMP v. Myriad Genetics in 2013, Myriad (paradoxically to those either not paying attention or who over interpreted the scope of the Court's holding in its opinion) filed...more

If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.

by DLA Piper on

In the not too distant past, there was a school of thought that a covenant not to sue (CNTS) had a different legal effect than a patent license in the US. Differences I frequently heard included a CNTS does not run with the...more

Motion for Rule 11 Sanctions Denied After Plaintiff Granted Defendants Covenant Not to Sue Where Plaintiff Attempted to Make an...

Phoenix Modular Elevator, Inc. ("Phoenix") filed a complaint for patent infringement against T.L. Shield & Associates, Inc. ("Shield") and Modular Elevator Manufacturing, Inc. ("MEM"). The patent at issue, United States...more

Federal Court Dismissal of EEOC Suit Leaves Employers Hanging

by Fisher Phillips on

In a closely watched ruling, an Illinois federal district court handed a victory to one particular employer, but ducked a broader ruling that would have provided general guidance to companies generally that are trying to...more

Time To Reconsider The Assignability Of Certain Claims

by Nossaman LLP on

If an insurance company refuses to settle a claim, once liability has become reasonably clear and there is an opportunity to settle within limits, the defending insurer runs the risk of an excess verdict. Once the verdict is...more

Covenants Not to Sue in Connection with Nuisance and Other Property Claims Can Be Enforceable against Future Owners

At times, where a developer seeks to obtain an easement from a landowner for the construction of infrastructure or improvements on or adjacent to the landowner’s property, the landowner may request additional consideration to...more

EEOC Alleges that Standard Severance Agreement Language Violated Title VII

by Akerman LLP on

Certain standard provisions contained in separation agreements commonly used by employers violate federal law, according to the Equal Employment Opportunity Commission ("EEOC"). Specifically, EEOC in a suit filed in Illinois...more

Not Settling for Less: The EEOC’s Latest Challenge to Employee Releases

by BakerHostetler on

The Equal Employment Opportunity Commission (“EEOC”) recently filed a “pattern or practice” lawsuit against CVS Pharmacy, Inc., alleging that CVS uses an “overbroad, misleading and unenforceable Separation Agreement” that...more

Covenant Not to Sue Does Not Prevent Finding of Exceptional Case and Award of Attorneys' Fees Where Adverse Determinations Were...

Plaintiffs Kim Laube & Co. ("Laube") brought this patent infringement action against Defendant Wahl Clipper Corp. ("Wahl") for infringement of U.S. Patent No. 6,473,973 ("the '973 Patent"), which is titled "Disposable Cutting...more

The Katten Kattwalk – Spring 2013

In this issue: - Questions Left Unanswered by Louboutin Case - Supreme Court Rules on Covenant Not to Sue - An Eye for Fashion: New York Magazine Presents New York’s - Women Leaders in the...more

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