The transcript from a February hearing in one of those EDVA #ScheduleA cases is now out.
The judge clearly has some concerns: "while, certainly, the courts are here to facilitate the voluntary resolution of matters through settlements and licenses, it is not appropriate to abuse the court's process by creating and pursuing litigation in which people don't have a fair opportunity to get to the merits of them."
The plaintiff dismissed the complaining defendant, so the judge seems to think they couldn't rule on the issues that defendant raised. I'm not sure about that, since the defendant apparently raised concerns about "the litigation as a whole." But in any case, it's interesting that the judge went out of his way to make these comments about the #ScheduleA model.
A pro se #ScheduleA complaint, alleging design patent infringement, with an unsealed Schedule A and an apparently misnamed patent (the patent named in the allegations doesn't match the attached document or how it's described):
Oh, this is potentially big. Dyson denied profits in a trademark #ScheduleA case. At oral argument, two judges "pushed back on the notion that [Dyson] was at all entitled to a profits award in the case."
Note that the disgorgement provision of the Lanham Act expressly addresses burden shifting (unlike the Copyright Act and § 289 of the Patent Act): "In assessing profits the plaintiff shall be required to prove defendant’s sales only; defendant must prove all elements of cost or deduction claimed."
"The Court declines the request to award profits because Plaintiff offered evidence of revenue, not profits. Revenue and profits are not the same thing. The Court declines the invitation to assume that all of the revenue equals profits."
In #ScheduleA copyright case (before Judge Kennelly) a group of defendants accuses the plaintiff of all kinds of misconduct, including bad faith withholding of TRO documents and judge shopping:
Another good #ScheduleA joinder from the NDIL (Gottschall, J.):
"Without a limiting principle, adopting the approach taken in Bose would undermine a consistent line of cases in this district holding that 'Rule 20(a)’s requirement for a common transaction or occurrence is not satisfied where multiple defendants are merely alleged to have infringed the same patent or trademark.'”
Bailie v. Schedule A No. 1:24-CV-2150, 2024 WL 2209698, at *4 (N.D. Ill. May 15, 2024).
I listened in to another hearing today as I've found a way to dial in internationally for free. 🎉🎉🎉
The judge made me laugh so much. He suggests to a bunch of defendants that appeared, that they should just email the lawfirm as they are reasonable and probably dismiss them if they e sold nothing and have removed products from sale.
Hahahah the lawfirm are reasonable ...... Do the judges not get that they're only reasonable for 💲💲💲
SDFL judge orders Tesla to "file a Notice of Related Action by the close of business on May 13, 2024 identifying the four other related actions pending in the Southern District of Florida, along with a brief explanation why those claims and defendants were not included in the instant [#ScheduleA] case."
This part, though, is really something. Basically: "We want to sue 1,907 people and we filed them in five separate cases to spare YOU, THE COURT the burden of 1,907 separate cases."
So, we're doing an IP event at my new school tomorrow. It will be the first time I'll talk about the #ScheduleA shakedown scheme while I am physically in the NDIL. Here we go....
#LawStudentNote idea: Does the "swarm" joinder theory set forth in the Bose case make sense for #ScheduleA cases? If so, what kind of showing should be required of the plaintiff?
Bose Corp. v. Partnerships & Unincorporated Associations Identified on Schedule "A", 334 F.R.D. 511 (N.D. Ill. 2020).
See also Roadget v. Schedule A, 2024 WL 1858592, at *1 (N.D. Ill. Apr. 29, 2024) (distinguishing Bose).
The substance of the design patent infringement claims are not yet publicly-available but, judging from the prayer for relief....I'm not optimistic as to their quality:
(For anyone who doesn't know, this allegation makes two deep, fundamental errors of law. You can't get both profits AND damages and profits cannot be trebled.)