Bonum Certa Men Certa

Massive Discovery Misconduct and New Litigation Misconduct Show That the Patent World is Not Always About Justice

We have got a winner



Summary: Manipulation of the legal system, or arm-wrestling the law in order to get one's way, still a problem for the credibility of today's patent system (rife/riddled with misconduct)

EVERY now and then we document or pile/assemble together examples of misbehaviour, not necessarily at patent offices (EPO, USPTO and so on) but in courts and law firms. There's no lack of examples. The system is far from perfect, transparency can always help, and pointing out flaws can help correct these.

A few days ago "massive discovery misconduct" was reported in a case where the "plaintiff's severed litigation misconduct was exceptional."

"Following plaintiff's post-Markman stipulation of dismissal and a bench trial finding inequitable conduct," Docket Navigator summarised, "the court granted defendant's motion for attorney fees under 35 U.S.C. €§ 285 because plaintiff's severed litigation misconduct was exceptional."

Well, patents are, with few exceptions, not used amicably. And those who use them for hostile purposes are not exactly likely to act in good faith.

Another example of misconduct was covered a few days ago by David Hricik, who focuses on ethical matters. "In addition to this evidence," he said, "the district judge heard evidence of various litigation misconduct..."

Here are the details:

Last month, the Federal Circuit held oral argument in an appeal, styled Gilead Sciences, Inc. v. Merck & Co., Inc. (Appeal Nos. 16-2302 & -2615) from a judge’s decision which held a patent unenforceable — for unclean hands — after a jury returned a verdict of $200 million. A more detailed write up is here which includes a link to the oral argument.

Boiled down, in a bench trial after the verdict, the judge heard evidence that Gilead had agreed to share information with Merck regarding an antiviral agent against Hep C — provided Merck personnel working on Merck’s competing work be walled off rom the information. Gilead shared information on a call… and a Merck attorney who was on the call who was prosecuting a Merck competing application then amended claims to cover the Gilead product.

As a twist, the application that was amended supported the Gilead product, and the jury had found no derivation. The reason was that the amended Merck application had support for a large genus of compounds, but the amendment narrowed to a subgenus which included Gilead’s leading agent. In other words, Merck had invented the Gilead product, and so there was no but-for materiality (in any meaningful sense that I can see, at least).


In an ideal patent system the patents granted would be of high quality, litigation be a last resort, and the legal process involve no misconduct. But in a world where lawyers on both sides just try to win the case can we expect justice or a shouting match where the longterm goal is to drain the opposition's pockets (with legal fees)?

Recent Techrights' Posts

[Meme] One Person, Singular Pronoun
Abusing people into abusing the English language is very poor diplomacy
New Article From Richard Stallman Explains Why He Says He and She for Unknown Person (Not 'They')
"Nowadays I use gender-neutral singular pronouns for a person whose gender I don't know"
 
Gemini Not Deflated Yet (Soon Turning 5!)
Gemini numbers still moving up, the protocol will turn five next summer
Links 30/11/2023: Belated End of Henry Kissinger and 'Popular Science' Shuts Online Magazine
Links for the day
Site Priorities and Upcoming Improvements
pages are served very fast
Ending Software Patents in Recent Years (Software Freedom Fighters MIA)
not a resolved issue
IRC Proceedings: Wednesday, November 29, 2023
IRC logs for Wednesday, November 29, 2023
Over at Tux Machines...
GNU/Linux news
Links 30/11/2023: Rushing Patent Cases With Shorter Trial Scheme (STS), Sanctions Not Working
Links for the day
Links 30/11/2023: Google Purging Many Accounts and Content (to Save Money), Finland Fully Seals Border With Russia
Links for the day
Lookout, It's Outlook
Outlook is all about the sharing!
Updated A Month Ago: Richard Stallman on Software Patents as Obstacles to Software Development
very recent update
The 'Smart' Attack on Power Grid Neutrality (or the Wet Dream of Tiered Pricing for Power, Essentially Punishing Poorer Households for Exercising Freedom Like Richer Households)
The dishonest marketing people tell us the age of disservice and discrimination is all about "smart" and "Hey Hi" (AI) as in algorithms akin to traffic-shaping in the context of network neutrality
Links 29/11/2023: VMware Layoffs and Too Many Microsofters Going Inside Google
Links for the day
Is BlueMail a Client of ZDNet Now?
Let's examine what BlueMail does to promote itself
Just What LINUX.COM Needed After Over a Month of Inactivity: SPAM SPAM SPAM (Linux Brand as a Spamfarm)
It's not even about Linux
Microsoft “Discriminated Based on Sexuality”
Relevant, as they love lecturing us on "diversity" and "inclusion"...
IRC Proceedings: Tuesday, November 28, 2023
IRC logs for Tuesday, November 28, 2023
Media Cannot Tell the Difference Between Microsoft and Iran
a platform with back doors
Links 28/11/2023: New Zealand's Big Tobacco Pivot and Google Mass-Deleting Accounts
Links for the day
Justice is Still the Main Goal
The skulduggery seems to implicate not only Microsoft
OpenBSD Says That Even on Linux, Wayland Still Has a Number of Rough Edges (But IBM Wants to Make X Extinct)
IBM tries to impose unready software on users
[Teaser] Next Week's Part in the Series About Anti-Free Software Militants
an effort to 'cancel' us and spy on us
Over at Tux Machines...
GNU/Linux news
Permacomputing
This work is licensed under a Creative Commons Attribution 4.0 International License
Professor Eben Moglen on How Social Control Media Metabolises Humans and Constraints Freedom of Thought
Nothing of value would be lost if all these data-harvesting giants (profiling people) vanished overnight
IRC Proceedings: Monday, November 27, 2023
IRC logs for Monday, November 27, 2023
When Microsoft Blocks Your Access to Free Software
"Linux is a cancer that attaches itself in an intellectual property sense to everything it touches." [Chicago Sun-Times]
Techrights Statement on 'Cancel Culture' Going Out of Control
relates to a discussion we had in IRC last night
Stuff People Write About Linux
revisionist pieces
Links 28/11/2023: Rosy Crow 1.4.3 and Google Drive Data Loss
Links for the day