Who would lose from a Google breakup

By Barry Barnett on June 2, 2025

Tech adept David Streitfeld explores the upside of cutting Google into pieces today in The New York Times. He cites talk on Wall Street that Google might reap big rewards if it pre-empted a breakup decree by choosing to “spin off huge chunks of itself into independent entities.”

The breakup of Standard Oil, after all, made John D. Rockefeller the richest man ever.

Streitfeld does note a few likely losers:

“The breakup of Google would only hurt people who would otherwise benefit from unlawful market power,” said Barry Barnett, an antitrust lawyer at Susman Godfrey. “These might include Google executives, whose compensation could fall; start-ups, which could get lower buyout offers from Google or none at all; and rivals like Apple, which could see chances to share revenue vanish.” Google currently pays Apple $20 billion annually to be the default search engine on the Safari browser.

Commercial Roundup – May 21, 2025

By Barry Barnett on May 21, 2025

We round up the most significant appellate decisions relevant to commercial litigation each week.

Uber Eats sued DoorDash for hogging big buyers of “first-party delivery services”.
- https://lnkd.in/gMkmhrve.
Uber Eats will need to show that DoorDash’s efforts to lock big chains into using its “first-party delivery services” block Uber Eats from access to a “substantial” part of the market.
- 4 takeaways from Uber vs. DoorDash
False Claims Act requires proof that drug-maker’s support for patient co-pays caused purchases of its drugs. https://lnkd.in/gTSQKmSz.
- 23-2086P-01A.pdf
New Texas court of appeals rules that new Texas business court lacks jurisdiction on cases that “commenced” before 9-1-24.
- https://www.linkedin.com/posts/barry-barnett-8313014_big-ruling-on-texas-business-courts-jurisdiction-activity-7299916851910742017-UL2T?utm_source=share&utm_medium=member_desktop&rcm=ACoAAD-3kQMBA9v-7U4Gx0QdIggbZhjoMsEbO20
Profits that trademark infringer must disgorge may not include profits its affiliates received.
- 23-900 Dewberry Group, Inc. v. Dewberry Engineers Inc. (02/26/2025)
Claimant seeking one-on-one arbitration did not show that other party refused to arbitrate and therefore could not appeal refusal to undo consolidation of over 7,000 cases.
- 24-1645.pdf
Lack of express time limit on promise to assign license doomed attempt to rescind contract.
- 24-1314P-01A.pdf
Claim that died before bankruptcy filing date stays dead.
- 242159p.pdf
Fact that arbitration award applied federal (copyright) statute did not confer jurisdiction to vacate it.
- 231729.P.pdf
Drug maker’s scheme to inflate prices harmed direct buyers, not remote payers, for purposes of RICO claims.
- 241043.P.pdf
Ripeness doctrine made claim for cost of repair premature pending insurer’s demand for appraisal.
- 24-1612.pdf
Online buyer of fitness services did not agree to arbitration clause.
- 23-15999.pdf
Chip buyers failed to allege antitrust claim because they could not license Qualcomm’s patent rights from any other source.
- 23-15999.pdf
25-percent benchmark for class-action fee awards required new look at award of 45 percent.
- 23-55288.pdf
Public disclosure bar and absence of original information precluded qui tam claim relating to fraud in bidding for wireless spectrum rights.
- 23-55288.pdf
In case against accountants, “anti-fracturing rule” barred use of 4-year limitations period for fraud claims.
- 230427.pdf
Trust had sole right to pursue bankrupt LLC’s tort claims, but LLC members could sue for breach of contract that named them as parties.
- 23-1202_opn.pdf
Prior art made patent on detecting arrhythmia obvious.
- 23-1512.OPINION.3-7-2025_2478298.pdf
Patent on easy to remove vest didn’t limit “pull cord” to one the user pulls “directly”.
- .23-2062.OPINION.3-7-2025_2478261.pdf
Limits in early patent didn’t restrict scope of later one.
- 23-2045.OPINION.3-21-2025_2485815.pdf
Patent statute doesn’t allow grant of patent having no term.
- https://lnkd.in/gADbnXBy
Class members that missed opt-out deadline didn’t “constructively” opt out by filing their own cases.
- processWebInputExternal.pl
Short seller’s caustic report didn’t show fraud caused drop in stock’s price.
- 241709.P.pdf
Consulting firm didn’t describe what it claimed counted as a trade secret well enough.
- 24-10375-CV0.pdf
Lease barred gas producer from deducting costs to process and fractionate gas before calculating royalties owing to land owners.
- 24-10375-CV0.pdf
Contractor’s insurance claim for loss stemming from subcontractor’s failure to perform didn’t damage subcontractor.
- https://lnkd.in/eYKCB3ca
Lanham Act required trademark infringer to forfeit all payments it received from infringing sales.
- processWebInputExternal.pl
Late demand forfeited right to jury trial.
- processWebInputExternal.pl
Clause that barred “damages” didn’t preclude unjust enrichment award.
- 202213776.pdf
Details that did not appear in provisional patent application did not count as prior art. https://lnkd.in/e6CD346N
- 22-1945.OPINION.3-24-2025_2486478.pdf
Switch in phrasing of drug patent—from “wherein the liquid solution” did not include propylene glycol to “consisting of” a list of items other than propylene glycol—disclaimed any formulation with propylene glycol in it.
- https://lnkd.in/gphB_J6q
I wonder–does Rule 408 protect the Meta chief’s talks with the President?
- Meta’s Zuckerberg running out of time to talk Trump into ending antitrust trial
The “i” in “iVoters.com” did not overcome bar to trademark protection for “highly descriptive” marks. https://lnkd.in/gRwnuMnR
Firm that misused merger target’s trade secrets owed target disgorgement for 26-month head start plus damages for breach of NDA.
- 22-2185.OPINION.4-4-2025_2493736.pdf
Party couldn’t raise new claim construction points on appeal from adverse judgment.
- 23-1841.OPINION.3-24-2025_2486454.pdf
Fraud victims lacked privity with firm whose salesman scammed them into buy-ing Ponzi scheme through an outside confederate, and they therefore could not enforce arbitration agreement against salesman’s firm.
- 24-2379.pdf
Ground in IPR for deeming patent obvious (and therefore invalid) did not rely “solely” on “prior art consisting of patents or printed publications”.
- 23-1208.OPINION.4-23-2025_2503159.pdf
Jury could find that label using three “great big” but different letters infringed trade dress in label design.
- processWebInputExternal.pl
Contract’s use of federal standard didn’t provide basis for suit in federal court.
- 24-1726_opn.pdf
New Jersey law could displace choice of Texas on question of forcing transport workers to arbitrate.
- www2.ca3.uscourts.gov/opinarch/233177p.pdf
Pursuit of TCPA claims didn’t amount to sham that would forfeit first amendment defense.
- 232109.P.pdf
LLC didn’t show grounds for diversity jurisdiction.
- 24-50101-CV0.pdf
State Department must disclose names of people who worked on target for cutting greenhouse gas.
- 24-50189-CV0.pdf
Failure to compare services ERISA plan’s record-keeper performed with services other plans’ record-keepers rendered doomed claim that plan paid too much.
- 25a0117p-06.pdf
Law firm’s disloyalty didn’t harm client.
- processWebInputExternal.pl
Non-literal parts of software didn’t show minimal creativity copyright law requires.
- 202146P.pdf
High cost lender’s participation in bench trial on amount of legal restitution waived right to jury trial.
- 23-55259.pdf
Investor who ordered sale of his holdings during COVID-19 outbreak couldn’t blame broker for doing what he asked.
- https://media.cadc.uscourts.gov/opinions/docs/2025/05/24-7025-2114467.pdf
Inventors’ doubts about whether CRISPR system they invented could edit DNA didn’t preclude conclusion that they conceived the invention.
- 22-1653.OPINION.5-12-2025_2512679.pdf

Commercial Roundup – March 3, 2025

By Barry Barnett on March 3, 2025

Commercial Roundup rides again!

Patent must claim drug’s “active ingredient” as invention to qualify for listing in FDA Orange Book.
- 24-1936.OPINION.12-20-2024_2439730.pdf
Excess policy didn’t cover defense costs (although primary policy did).
- 230006.pdf
Lack of control by vendor over merchants’ use of point of sale “builder” system whose use would infringe patent doomed vicarious infringement claim against vendor.
- 23-1111.OPINION.12-18-2024_2438003.pdf
Dispute between Taiwan firms over conduct that harmed plaintiff in U.S. but started in Taiwan belonged in Taiwan.
- 23-1738P-01A.pdf
Owner of social-media app that nose dived after Meta changed its algorithm alleged enough to toll Sherman Act’s 4-year statute of limitations.
- 23-763_complete_opn.pdf
Class cert. order defined wrongful conduct too vaguely to meet common issues test of Rule 23(b)(3).
- 232287.p.pdf
Jury may look at amount a defendant must disgorge in making award of punitive damages.
- processWebInputExternal.pl
Software maker stated Sherman Act claim against other software maker for tying purchase of competing program to purchase of different program.
- 23-16065.pdf
PTAB should have found patent on using code words to reduce message errors obvious in light of prior art showing same key table with same digits in reverse order.
- 23-1354.OPINION.1-2-2025_2444743.pdf
FCC lacked power to issue rules that require firms that provide broadband service not to favor some customers over others.
- 25a0002p-06.pdf
Anti-Kickback Statute supports False Claims Act claim against drug maker for bribing doctors to prescribe one of its products.
- 22-2708_opn.pdf
Hip implant maker couldn’t trademark pink.
- 23-1502.OPINION.1-3-2025_2445697.pdf
Antitrust Division and FTC toughen guidelines on non-competes, NDAs, no-poach, info-sharing, and other practices affecting competition for workers.
- Office of Public Affairs | Justice Department and Federal Trade Commission Issue Antitrust Guidelines on Business Practices that Impact Workers | United States Department of Justice
Reverse doctrine of equivalents didn’t require judgment of noninfringement, might not exist.
- 23-1790.OPINION.1-24-2025_2456160.pdf
Prior art for image capture patent made fixing image sensor in place relative to camera obvious.
- 23-1501.OPINION.1-27-2025_2457317.pdf
Plan to sell drug coast to coast met test for personal jurisdiction in case alleging drug infringed patent.
- 24-1965.OPINION.1-29-2025_2459289.pdf
American Antitrust Institute urges Ninth Circuit to restore $4.7 billion jury award against NFL.
- NFL Sunday Ticket amicus draft FINAL with tables
Lease that made payment due more than 60 days after lessee filed bankruptcy gave lessee right to payment in full.
- 24-255_opn.pdf
Software that uses others’ software without copying it doesn’t infringe their copyrights.
- 23-16038.pdf
Test for pleading trade dress claim doesn’t require complaint to allege what makes the trade dress distinctive.
- 23-7586_opn.pdf
Patent that called for layer of tungsten in integrated circuit made later calling for the same thing obvious despite error in construing “tungsten”.
- 23-1397.OPINION.2-6-2025_2464314.pdf
Invalidation of some patent claims in IPR did not preclude assertion of other claims in same patent.
- 23-1359.OPINION.2-10-2025_2465811.pdf

Commercial Roundup – December 11, 2024

By Barry Barnett on December 11, 2024

The courts’ output has slowed as the days grow ever shorter ahead of the winter solstice. Welcome to the Commercial Roundup of December 11, 2024.

“You’d think [the new Texas Business Court] would want to resolve this [dispute over its jurisdiction to handle old District Court cases] quickly because the whole idea is you don’t get bogged down in procedure.”
- https://news.bloomberglaw.com/litigation/texas-new-business-court-works-to-stay-free-of-taking-old-cases
PTAB’s view of “merchant” as provider of goods or services didn’t preclude court from giving it a narrower meaning.
- https://cafc.uscourts.gov/opinions-orders/23-1176.OPINION.12-9-2024_2432361.pdf
Taking online orders for goods from outside U.S. and later dropping then gave U.S. court personal jurisdiction over merchant.
- 21-1381_opn.pdf (uscourts.gov)
Meaning of patent claim term could vary across claims.
- 24-1398.OPINION.9-16-2024_2384927.pdf (uscourts.gov)
Sua sponte ruling that patent failed Section 101 test for patent-eligible subject matter abused trial court’s discretion.
- https://lnkd.in/gNif5JCX
“It’s the fashion world. Here today, gone tomorrow.”
- FTC vs. Tapestry Highlights Fashion’s Antitrust Future, Kors Weakness (wwd.com)
Antitrust enforcers “are not going to come up with a way for [a competition-reducing merger] to work for you.” Now, “companies thinking about merging think twice about it.”
- Failed Deals Climb as Antitrust Enforcers Push Aggressive Agenda (bloomberglaw.com)
“The companies are saying that this merger won’t reduce competition because Kors is so weak,” Barry Barnett, a partner in the law firm Susman Godfrey, said. “Tapestry has to revive it before it can raise prices.”
- The Addiction to Discounting at Michael Kors Is Exposed in Court – WSJ
Contract limit on damages for breach did not make harm from breach “irreparable”.
- 23-16082.pdf (uscourts.gov)
Proof that device maker failed to seek “third-party” advice on whether device infringed patent ran afoul of 35 U.S.C. 298’s bar against using failure to request legal advice to show willfulness.
- 23-1438.OPINION.10-2-2024_2394588.pdf (uscourts.gov)
Untrue statement that Crocs used “patented” stuff to make shoes could support false ad claim under Lanham Act.
- 22-2160.OPINION.10-3-2024_2395329.pdf (uscourts.gov)
License didn’t foreclose patent claims. Plus, de novo standard applies to review of whether complaint alleges “facts” or “conclusions”.
- 22-2036.OPINION.10-8-2024_2398426.pdf
Using someone else’s trademark to place ads ahead of link to trademark owner’s website doesn’t infringe trademarks without proof that user’s conduct misled buyers.
- 22-1634_opn.pdf
Contract that assigned question of disputes’ arbitrability to arbitrator left now room for discovery in district court.
- 232953p.pdf
Purchase option giving seller right to pick firm to set option price from lists of two banks that merged into other banks required seller to seek buyer’s okay of price setter.
- processWebInputExternal.pl
Lack of data showing link between substances in oil spill and workers’ ailments barred expert’s report that spill harmed workers’ health.
- 202311535.pdf
Fact question over what patent claims meant barred dismissal.
- 23-1435.OPINION.10-18-2024_2404584.pdf
Using trademark to trigger online ads didn’t infringe it.
- 23-16060.pdf
Promise not to sue seller of infringing product barred claim against its buyers.
- 010111132047.pdf
“Group” might mean “one or more”.
- 23-1435.OPINION.10-18-2024_2404584.pdf
Mass/class arbitration rules made process too strange and winning too hard for consumers.
- 23-55770.pdf
Parties can’t remove pre-9/1/24 cases to the new Texas business court.
- https://www.linkedin.com/posts/barry-barnett-8313014_opinion-and-order-remanding-case-from-business-activity-7257845630536986624-wf9o?utm_source=share&utm_medium=member_desktop
Bank’s error in paying check’s entire amount to one of two joint payees discharged maker.
- 202213338.pdf
Reports of earnings on warranty contracts may have implied falsely that seller’s method for counting income on contracts relied on real payment history, barring toss of securities claims against seller, its auditor, and stock underwriters.
- 20-1643_amd_opn.pdf
Breach of duty to DISCUSS license for standard-essential patents could preclude enforcement of non-U.S. orders banning sale of products practicing SEP inventions.
- 24-1515.OPINION.10-24-2024_2408080.pdf
VoIP patent required two-way voice.
- https://lnkd.in/ggxgqUCn
Lack of clear ruling on scope of discovery under subpoena in aid of action outside U.S. under 28 U.S.C. 1782 barred appeal.
- 23-3449.pdf
Statement on CNN that Twitter suspended a member for posting “misinformation” instead of “private information” met falsity element of member’s libel claim.
- 202211270.pdf
City of Baltimore wins $274 million opioids verdict against McKesson and AmerisourceBergen.

Commercial Roundup – September 18, 2024

By Barry Barnett on September 18, 2024

Welcome to the end-of-summer issue of Commercial Roundup–a collection of the most important appellate decisions for commercial litigators and trial lawyers by the U.S. Supreme Court, the 13 U.S. Courts of Appeals, and the highest courts in Delaware, New York, and Texas.

Action to confirm or vacate arbitration award must raise federal question apart from Arbitration Act to proceed in federal court.
- 221895.P.pdf (uscourts.gov)
Directors’ passage of bylaws with intent to thwart bid to replace them violated duty of loyalty and invalidated bylaw changes.
- Download.aspx (delaware.gov)
Joint venture partner’s attempt to eject other partner from $165 million contract warranted preliminary injunction for breach of fiduciary duty.
- 202213598.pdf (uscourts.gov)
Amending complaint to drop patent claims didn’t prevent ruling on patents’ validity from having preclusive effect.
- 22-2090.OPINION.7-19-2024_2353095.pdf (uscourts.gov)
Obviousness defeats patent for sending data.
- 22-2220.OPINION.7-22-2024_2354035.pdf (uscourts.gov)
Claim that inside group knew FCC would choose public over private auction of spectrum lacked enough details.
- 23-15822.pdf (uscourts.gov)
5-year delay in suing over flimsy zipper pouches made contract claims too late.
- processWebInputExternal.pl (uscourts.gov)
Rule requiring “patentably distinct” changes to unpatentable invention doesn’t apply in re-exams.
- 23-1005.OPINION.7-26-2024_2357128.pdf (uscourts.gov)
Buyer of Gucci store on Rodeo Drive could deduct cost of early loan payoff from resale price to compute prior owner’s share (zero).
- Download.aspx (delaware.gov)
Plaintiff’s dismissal without prejudice as to one defendant did not make defendant “prevailing party” eligible for award of attorney’s fees under Copyright Act.
- 202312563.pdf (uscourts.gov)
Google Monopolized Online Search, U.S. Judge Rules.
- ‘Google Is a Monopolist,’ Judge Rules in Landmark Antitrust Case – The New York Times (nytimes.com)
Power company may have abused its dominance in fight with upstart over long-term contract with wholesale buyer.
- 222168.P.pdf (uscourts.gov)
Texas law applied to whether insurer could back out of policy.
- 23-15556.pdf (uscourts.gov)
Software for insurance quotes might support copyright claim.
- 202114071.pdf (uscourts.gov)
IPR filer didn’t forfeit ground by not raising it on rehearing.
- 22-2163.OPINION.8-1-2024_2360441.pdf (uscourts.gov)
Patent on using images to retrieve info claimed unpatentable abstract idea.
- 22-2216.OPINION.8-6-2024_2362691.pdf (uscourts.gov)
For avoidance of doubt, I scratch my head a lot.
- Experts on X Corp.’s Antitrust Suit: ‘A Head Scratcher’ with a Side of ‘Forum Shopping’ – The Texas Lawbook
“COGNAC” certification mark might preclude trademark using “Cognac” for hip-hop music.
- 23-1100.OPINION.8-6-2024_2362658.pdf (uscourts.gov)
Public policy defense couldn’t rescue Venezuelan iron ore producer from arbitration award for breach of supply contract.
- 202114504.pdf (uscourts.gov)
Question of whether trademark owner meant to resume using it despite 3-year gap raised fact issue for trial.
- 222211.P.pdf (uscourts.gov)
Google search results supported claim that buyers of restaurants used seller’s trademark despite lack of license.
- 23-20492-CV0.pdf (uscourts.gov)
Request for damages gave loser in fight to purchase tech firm right to jury trial despite equitable nature of its claim for aiding breaches of fiduciary duty.
- 23-20492-CV0.pdf (uscourts.gov)
Saudi firm’s foot-dragging justified dismissal of its case.
- processWebInputExternal.pl (uscourts.gov)
Sale of product that used process more than a year before its owner applied to patent it triggered on-sale bar despite its secrecy.
- 22-1827.OPINION.8-12-2024_2365402.pdf (uscourts.gov)
Guess that patent owner would sue after dropping claim with prejudice failed to show concrete harm Article III requires for standing.
- 23-1227.OPINION.8-16-2024_2368511.pdf (uscourts.gov)
Whether copyright owner timely brought infringement claim doesn’t depend on owner’s savvy.
- 23-1078_opn.pdf (uscourts.gov)
Quantum meruit claim didn’t allow recovery of contract price.
- 23-40137-CV0.pdf (uscourts.gov)
Tons of parol evidence showed what contract unambiguously meant.
- https://lnkd.in/gW3qzsqq
Suit over thwarting of deal to buy fiber-optic network should proceed in the U.K.
- https://lnkd.in/gpqptdPj
New state-wide appeals court for business cases doesn’t conflict with some parts of Texas Constitution.
- 240426.pdf (txcourts.gov)
“Red flags” in patent case didn’t warrant fee award.
- 23-1035.OPINION.8-23-2024_2372558.pdf (uscourts.gov)
Floor on royalties didn’t misuse U.S. patents by forcing payments after they expired.
- 23-16020.pdf (uscourts.gov)
Patents on video choice failed both steps of Alice test for patentable subject matter.
- 23-1107.OPINION.9-3-2024_2377827.pdf (uscourts.gov)
Lending digital copies of books that lender held on its shelves didn’t qualify as “fair use” under Copyright Act.
- 23-1260_opn.pdf (uscourts.gov)
In patent cases involving question of obviousness, person of ordinary skill in the relevant art need not have acquired the skill at the time the inventor conceived of the invention.
- 23-1627.OPINION.9-4-2024_2378780.pdf (uscourts.gov)
Stay of motion to compel arbitration pending discovery on arbitrability of dispute didn’t trigger right to appeal.
- www2.ca3.uscourts.gov/opinarch/221461p.pdf
Section 230 of Communications Decency Act didn’t shield TikTok from claim that its algorithm’s promotion of video to 10 year-old girl led her to hang herself by mistake.
- 223061p.pdf (uscourts.gov)
Directors owed preferred shareholders no fiduciary duty not to structure transactions in way that favored common shareholders.
- 231905.P.pdf (uscourts.gov)
Website gave paint buyer enough notice of arbitration clause.
- processWebInputExternal.pl (uscourts.gov)
Absence of seller’s assent to key term of stock purchase deal barred breach of contract claim.
- processWebInputExternal.pl (uscourts.gov)
Party’s failure to correct wrong address didn’t forfeit due process right to notice of trial.
- 230443pc.pdf (txcourts.gov)
IPR finding that maker of wireless chip sets didn’t infringe one patent didn’t estop patent owner from claiming it infringed other patents that might lack a key limitation.
- 22-1755.OPINION.9-6-2024_2380516.pdf (uscourts.gov)

Google monopolized online search market, Judge Mehta rules

By Barry Barnett on August 5, 2024

https://www.nytimes.com/2024/08/05/technology/google-antitrust-ruling.html

More to follow.

Commercial Roundup – July 18, 2024

By Barry Barnett on July 18, 2024

Welcome to summer 2024’s first edition of Commercial Roundup.

Force majeure clause in contract for “firm” supply of natural gas from Texas to Arizona didn’t require seller to show Storm Uri made delivery impossible but did mandate proof that it used “due diligence” to protect its Permian Basin source and to tap other sources.
- https://www.ca5.uscourts.gov/opinions/pub/23/23-10575-CV0.pdf
Selling copies of model codes and standards having force of law in Canada didn’t infringe U.S. copyright.
- https://www.ca5.uscourts.gov/opinions/pub/23/23-50081-CV0.pdf
Court looking into odd pattern of patent cases had inherent authority to order owner of patent-holding firm to appear at hearing and hold her in contempt for failing to attend.
- https://cafc.uscourts.gov/opinions-orders/23-2367.OPINION.7-16-2024_2350699.pdf
Force majeure clause in 2019 contract allowed firm to cancel big event at hotel after COVID-19 public health orders made holding event “impossible or illegal”.
- https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0150p-06.pdf
Failure of U.S. firm to invoice foreign country for payments under contract in U.S. barred commercial exception to sovereign immunity defense.
- https://www.cadc.uscourts.gov/internet/opinions.nsf/5C5A80D6D0B9336885258B5C0052520A/$file/23-7009-2064901.pdf
Parties’ consent to “receiving the verdict from the jury” didn’t cover “non-ministerial functions” that only an Article III judge may perform.
- 202212936.pdf (uscourts.gov)
Nonsense phrase in amendment didn’t create ambiguity over when term of contract ended.
- 61opn24-Decision.pdf (nycourts.gov)
Clicking “Acknowledge” button bound software author to assign rights in software.
- 22-7057-2060925.pdf (uscourts.gov)
U.S. House budget would cut Antitrust Division’s funding and bar it from hiring people to perform new jobs.
- BILLS-118-SC-AP-FY2025-CJS-FY25CJSSubcommitteeMark.pdf (house.gov)
Bankruptcy Code doesn’t allow discharge of creditors’ claims against persons other than debtors.
- 23-124 Harrington v. Purdue Pharma L.P. (06/27/24) (supremecourt.gov)
More than 30,000 people who claimed Samsung misused their data failed to prove they bound themselves to Samsung’s standard arbitration agreement.
- processWebInputExternal.pl (uscourts.gov)
Likelihood of confusion survey wins trademark infringement case.
- 23-15405.pdf (uscourts.gov)
Blatant copying of Motorola’s data and theft of its trade secrets cost foreign thief profits from U.S. sales under Copyright Act and profits from U.S. and foreign sales under Defend Trade Secrets Act.
- processWebInputExternal.pl (uscourts.gov)
Winners of arbitration award in Hong Kong over real estate dealings in China against U.S. resident could collect in dollars.
- 231144.P.pdf (uscourts.gov)
Title to “personal property” that builder stored at site of new hotel passed to project’s owner upon payment of builder’s interim invoices for it.
- 23-10603-CV0.pdf (uscourts.gov)
Claim under Sherman Act against retail stock broker and market maker for scheme to bar customers from further trades in meme stocks failed to allege that scheme harmed competition for broker services.
- 202211873.pdf (uscourts.gov)
Touting of generic drug as equal to brand-name version implied intent to induce uses that infringed patent.
- 23-1169.OPINION.6-25-2024_2339226.pdf (uscourts.gov)
Bar against contracts that require payments after patent expires didn’t void arbitration award.
- processWebInputExternal.pl (uscourts.gov)
Preliminary injunction enforcing patents against DNA test for cancer somehow survives review.
- 24-1324.OPINION.7-12-2024_2349134.pdf (uscourts.gov)
Proof that law would infringe constitutional right does not by itself show irreparable harm.
- https://lnkd.in/gFEFB3Ja
Trustee that drew fees straight from workers’ health and pension accounts in in multi-employer trust fund must face class claims for damages under ERISA.
- 22-50368-CV1.pdf (uscourts.gov)

Commercial Roundup – June 19, 2024

By Barry Barnett on June 19, 2024

Happy Teenth–and welcome to the last Commercial Roundup of spring 2024!

Patent holder’s grant of right to license patent didn’t deprive it of standing to sue for infringement.
- 22-2207.OPINION.5-1-2024_2310958.pdf (uscourts.gov)
Infringement judgment didn’t become final before unpatentability decision did.
- 22-2064.OPINION.5-2-2024_2311705.pdf (uscourts.gov)
Patent holder’s effort to stop Utah company from making sales that holder claimed infringed its patent made it subject to personal jurisdiction in Utah.
- 23-1184.OPINION.5-2-2024_2311637.pdf (uscourts.gov)
Patent that didn’t claim “content” of a communication didn’t claim unpatentable “printed matter”.
- 21-1227.OPINION.5-3-2024_2312399.pdf (uscourts.gov)
So proud of James!
- https://lnkd.in/gYZvx6sN
Order with permanent effect counted as “temporary injunction”.
- 230078.pdf (txcourts.gov)
Contracts that paid generic drug makers both for delay in competing with brand name drug maker and for providing other “goods and services” didn’t stink enough to state a reverse-payment antitrust claim under Actavis.
- 23-410_opn.pdf (uscourts.gov)
De novo test applies to review of ruling on motion to dismiss derivative claim.
- 223027p.pdf (uscourts.gov)
Request to appoint umpire in dispute over amount of loss might not qualify as a “civil action” or present a justiciable “case or controversy”.
- 223027p.pdf (uscourts.gov)
Promise to indemnify shipper except if its “sole negligence” caused “liability” to third party bound trucking company to pay shipper’s defense costs in suit claiming shipper negligently hired trucker.
- https://lnkd.in/gBv4Fwxn
New lender that paid off debts to first lenders failed to prove that error in naming property owner as releasor instead of first lenders’ agent resulted from mutual mistake.
- processWebInputExternal.pl (uscourts.gov)
Worker who agreed to arbitrate her own claims against her employer but also agreed not to arbitrate “class or collective” claims could pursue claims on behalf of other workers in court under Private Attorney General Act.
- 22-56209.pdf (uscourts.gov)
Tenth Circuit calls for more briefing and argument on “fair use” in documentary film.
- https://lnkd.in/gyxg6He2
Eleventh Circuit savages district court and class counsel for errors in service of getting some value out of now worthless claims.
- https://lnkd.in/g67HgbrA
Tenth Circuit calls for more briefing and argument on “fair use” in documentary film.
- 010111048518.pdf (uscourts.gov)
Co-trustee breached fiduciary duty by selling trust asset without other co-trustee’s okay.
- 220674.pdf (txcourts.gov)
Final judgment that states it “is not appealable” is not a final judgment.
- 221100pc.pdf (txcourts.gov)
Copyright Act does not limit damages for timely infringement claims to 3-year limitations period.
- 22-1078_4gci.pdf (supremecourt.gov)
Judicial estoppel barred party from invoking collateral estoppel.
- 220166.pdf (txcourts.gov)
Lessee of oil and gas lands assigned all it owned in them despite limits in chart that “described” each “tract”.
- 230037.pdf (txcourts.gov)
Oil and gas lessee could compute royalty on gas “at the wellhead” after backing out from sales proceeds the value of gas it burned to process the gas it sold.
- 240036.pdf (txcourts.gov)
Section 285 of Patent Act doesn’t allow award of fees for IPR.
- 22-1621.OPINION.5-20-2024_2320138.pdf (uscourts.gov)
Appropriations Clause of U.S. Constitution allowed Congress to empower head of agency to decide how much yearly funding it would receive up to a cap.
- 22-448_o7jp.pdf (supremecourt.gov)
KSR test for obviousness of patents on inventions also applies to patents on designs.
- 21-2348.OPINION.5-21-2024_2321050.pdf (uscourts.gov)
Whether buyer could escape promise to buy merger target turned on unclear meaning of “promulgate” in context of SEC rules.
- Download.aspx (delaware.gov)
Claim limitation that patent applicant added to avoid examiner’s rejection made a “material” change, barring use of earlier application to set patent’s priority date.
- 23-1147.OPINION.5-23-2024_2322401.pdf (uscourts.gov)
Part owner of trademark owner lacked right to sue to cancel similar trademarks.
- 23-1383.OPINION.5-23-2024_2322382.pdf (uscourts.gov)
Federal Trade Commission sues Live Nation for monopolization and unlawful exclusive dealing and tying in S.D.N.Y.
- https://www.linkedin.com/posts/barry-barnett-8313014_complaint-in-ftc-v-live-nation-sdny-activity-7199803294884532225-F75I?utm_source=share&utm_medium=member_desktop
Statute stating that “any judgment . . . shall . . . bear post-judgment interest” requires interest on entire judgment, including any portion consisting of pre-judgment interest.
- Download.aspx (delaware.gov)
Colonel Philip J. Conran (Ret.) deserves the Medal of Honor for selfless heroism in saving two helicopter crews and 46 combat troops in a secret mission 55 years ago.
- https://www.linkedin.com/posts/barry-barnett-8313014_colonel-philip-j-conran-ret-deserves-activity-7201411019703767041-ampa?utm_source=share&utm_medium=member_desktop
Contract to supply buyer’s “requirements” lacked way to measure them and couldn’t support preliminary injunction.
- 24a0122p-06.pdf (uscourts.gov)
U.S. Mint implied it would pay for genuine coins despite presence of counterfeit coins in the more than 200 tons it accepted and melted to make new coins.
- 22-2154.OPINION.5-30-2024_2325474.pdf (uscourts.gov)
Federal law that sets standards for escrow accounts but does not address payment of interest would preempt state law mandating interest payments only if interest mandate “substantially interferes” with federal standards.
- 22-529_1b7d.pdf (supremecourt.gov)
Lump-sum payments in licenses for multiple patents supported jury’s award of damages for infringement of one.
- 23-1101.OPINION.6-3-2024_2327090.pdf (uscourts.gov)
AI and the threat of “moat building by gigantic entities that have tremendous resources”.
- Microsoft, Nvidia, and OpenAI face AI antitrust scrutiny: What to know (qz.com)
Administrative Procedure Act applies to rules that exempt licensees’ repair of medical device software from claims under Digital Millennium Copyright Act.
- 23-5067-2058361.pdf (uscourts.gov)
Permanent injunction that shut poultry farms should have allowed farms to fix odor problem by raising fewer chickens.
- 210676.pdf (txcourts.gov)
State’s suit against private firm waived immunity from firm’s subpoena to state agency for evidence relating to subject matter of state’s claims.
- 231849.P.pdf (uscourts.gov)
Trial lawyers speaking out for the rule of law.
- actl-condemns-unsubstantiated-accusations-from-public-officials-that-threaten-judicial-independence-and-the-rule-of-law.pdf
Patent application did not enable others to make and use the invention.
- 23-2282.OPINION.6-12-2024_2332725.pdf (uscourts.gov)
Right to engage in political speech didn’t override Lanham Act bar on trademarks that use an identifiable person’s name without permission.
- 22-704_4246.pdf (supremecourt.gov)
Lanham Act doesn’t preclude challenge to USPTO’s grant of trademark renewal 10 years after it expired.
- 221659.P.pdf (uscourts.gov)
Feature that scanned photos to find Facebook friends couldn’t identify non-users and therefore didn’t violate state Biometric Information Privacy Act.
- 22-16925.pdf (uscourts.gov)
Maker of wearable insulin pumps failed to show competitor used information that qualified as trade secrets.
- 24-1137.OPINION.6-17-2024_2334858.pdf (uscourts.gov)

Commercial Roundup – May 1, 2024

By Barry Barnett on May 1, 2024

Welcome to Commercial Roundup for May 1st–and happy May Day.

Discrete features of boot design lacked distinctiveness necessary for trademark.
- 231150.P.pdf (uscourts.gov)
Even a little harm from discriminatory change in work suffices under Title VII.
- 22-193_q86b.pdf (supremecourt.gov)
Delay in bringing suit for trademark infringement until after limitations would have expired under state-law analog to Lanham Act required presumption that laches barred claim.
- 231273p.pdf (uscourts.gov)
In class action over false claim that products aided dogs’ joint health, Rule 23 didn’t (a) require class to bolster expert’s damages model by using it to compute damages before certification or (b) bar certification due to class’s need to show class members relied on false claim. https://lnkd.in/gX2z8YGe
- 22-55744.pdf (uscourts.gov)
Failures to disclose scuzzy details about plan for growth through buying many dozens of rivals lacked didn’t support finding of strong intent to defraud.
- 22-55829.pdf (uscourts.gov)
Website’s use of “ERICA” didn’t clearly show the services for which it might serve as a service mark.
- 010111034400.pdf (uscourts.gov)
Patent owner’s unclean hands during lawsuit barred claims that rival mat maker’s products infringed patent.
- 22-1905.OPINION.4-12-2024_2300689.pdf (uscourts.gov)
Lawyer’s failure to find and brief evidence that could have ended case against client required trial of malpractice claim.
- Download.aspx (delaware.gov)
Truck driver failed to show need to treat trucking company as owner’s alter ego to prevent “injustice”.
- 210853pc.pdf (txcourts.gov)
Pure failure to disclose facts doesn’t run afoul of Rule 10b-5. https://lnkd.in/gbUy5FeS
- 22-1165_10n2.pdf (supremecourt.gov)
Insiders’ set up and handling of employee stock ownership plan for ailing company may have breached duties under ERISA.
- processWebInputExternal.pl (uscourts.gov)
Lanham Act allows award against trademark infringer for its infringing U.S. sales but not for U.S. sales by others who bought outside U.S.
- processWebInputExternal.pl (uscourts.gov)
Ahem. You don’t get in Fashion Dive every day. I don’t anyway. Good article.
- FTC lawsuit on Tapestry’s merger with Capri could have wider implications | Fashion Dive
Lessor of building could have both breached the lease in 2015 by failing to approve an agreement with New York City’s Department of Housing Preservation and Development and repudiated it in 2021 by stating it would never approve such an agreement.
- 30opn24-Decision.pdf (nycourts.gov)
Action in state court–to decide who owns the plaintiff in a federal-court case–should go to judgment first under Colorado River abstention doctrine.
- processWebInputExternal.pl (uscourts.gov)
Saks’s guaranty of lease waived lessee’s defenses to paying rent. https://lnkd.in/ggCUPQn8
- processWebInputExternal.pl (uscourts.gov)
Car dealer’s false claims for warranty work gave car maker good cause for ending dealer’s franchise.
- 212283p.pdf (uscourts.gov)
Clicking “Play” after download of free game app bound device owner to arbitration clause; invalid ban on public injunctions didn’t make clause unconscionable.
- 22-55982.pdf (uscourts.gov)

Commercial Roundup – April 16, 2024

By Barry Barnett on April 16, 2024

Commercial Roundup has some catching up to do this week. See the jumbo installment below.

Multiple terms in speech-recognition patent deserved broader construction.
- 22-1939.OPINION.2-16-2024_2271458.pdf (uscourts.gov)
Allowing any discovery on arbitrability amounts to denial of stay and authorizes immediate appeal.
- 23-30182-CV0.pdf (uscourts.gov)
Internet service provider’s failure to boot subscribers it knew often pirated music online made it a contributory copyright infringer.
- 211168.P.pdf (uscourts.gov)
FTC sues in Oregon to block $24.6 billion “supermarket mega merger” between Kroger and Albertsons, noting loss of competition on price and quality and harm to workers.
- https://lnkd.in/g7kiYmUj
Racing board’s ruling on horse naming against didn’t preclude owner’s first amendment challenge.
- 23-55735.pdf (uscourts.gov)
Failure to object to mention of patent applications’ filing dates before jury dooms bid for new trial.
- 22-1391.OPINION.2-26-2024_2276014.pdf (uscourts.gov)
Settling with a defendant for a big amount it can’t/won’t/doesn’t pay reduces non-settling defendants’ liability for the full amount.
- 220168.pdf (txcourts.gov)
All plaintiffs must incur their “principal injuries” in the forum state for CAFA’s “local controversy” exception to federal jurisdiction to apply.
- 23-40591-CV0.pdf (uscourts.gov)
Certificates for car dealer loyalty programs qualified for copyright law protection.
- 24a0039p-06.pdf (uscourts.gov)
Death of witness before parties could complete his deposition barred use of his testimony.
- 24b0001p-06.pdf (uscourts.gov)
Briefs can’t incorporate other briefs if incorporation results in brief that exceeds word count limit.
- 22-1093.ORDER.2-16-2024_2271495.pdf (uscourts.gov)
Judge’s email to lawyers didn’t count as rendition of judgment.
- 220242.pdf (txcourts.gov)
Insurance didn’t cover losses from closure of restaurants due to COVID-19 because virus didn’t materially alter property or deprive owner of its possession.
- 7opn24-Decision.pdf (nycourts.gov)
Law of Venezuela governed validity of notes its national oil company issued.
- 7opn24-Decision.pdf (nycourts.gov)
Patent on method for serving online ads recited abstract idea and lacked enough inventiveness to pass muster under Alice’s Section 101 test for patent eligibility.
- 22-1756.OPINION.3-5-2024_2280474.pdf (uscourts.gov)
Prior art made claims in patent on strep vaccine obvious.
- 19-1871.OPINION.3-5-2024_2280462.pdf (uscourts.gov)
Claims in battery patent didn’t contain contradiction and therefore didn’t fail for indefiniteness.
- 23-1194.OPINION.3-6-2024_2281183.pdf (uscourts.gov)
Ruling on all “issues” but not all “claims” made final judgment non-final.
- 202214136.pdf (uscourts.gov)
Antitrust Division would lose automatic funding boost from increase in merger filings.
- Biden Is Hyping Antitrust Policy. Congress Is Cutting It. (yahoo.com)
How do tech giants stay on top? By coopting people and things that would disrupt their dominance.
- Coopting Disruption by Mark A. Lemley, Matthew Wansley :: SSRN
White House calls for $823 million to antitrust enforcers–more than 50 percent boost over 2021 levels.
- FACT SHEET: The President’s Budget Lowers Costs for the American People | The White House
Drug makers didn’t show grounds for halting release of in-house lawyers’ writings about sham patent lawsuit under crime/fraud
- 232412p.pdf (uscourts.gov)
Airline could enforce arbitration clause in booking site’s terms and conditions.
- 21-16083.pdf (uscourts.gov)
Patent Act bars use of oral testimony in proceeding to oppose registration of trademark and therefore precludes subpoena for an oral deposition.
- 221871.P.pdf (uscourts.gov)
FAA Section 1 exempted worker whose job made him a link in movement of goods from abroad to places in U.S. from arbitration.
- 23-55147.pdf (uscourts.gov)
New York tour bus firm pleaded enough basis for its claim that bigger firms arranged to shut it out of the hop-on, hop-off market.
- 27mem24-Decision.pdf (nycourts.gov)
Watch maker’s use of “red gold” to describe time pieces’ color made “fair use” of “RED GOLD” trademark.
- 22-366_complete_opn_post.pdf (uscourts.gov)
Exemption in federal Arbitration Act for “class of workers” didn’t apply to LLC.
- 24a0058p-06.pdf (uscourts.gov)
Former director of company that went belly up failed to show he couldn’t afford a defense without D&O insurance money.
- 23-690_opn.pdf (uscourts.gov)
The Complaint in United States v. Apple Inc. (D.N.J.).
- https://www.linkedin.com/posts/barry-barnett-8313014_us-v-apple-inc-complaint-3-21-24-activity-7176705877624717312-U07k?utm_source=share&utm_medium=member_desktop
Matt Stoller explains U.S. v. Apple Inc.
- Why the Apple Antitrust Suit Matters – BIG by Matt Stoller (thebignewsletter.com)
“New use” that releases cancer-causing agents doesn’t include use the EPA just learned about.
- 23-60620-CV0.pdf (uscourts.gov)
Laches barred Rolex’s claim for profits of firm that fixed Rolex watches with non-Rolex parts.
- 22-10866-CV1.pdf (uscourts.gov)
Refusal to order specific performance of “best efforts” clause didn’t justify interlocutory appeal.
- Download.aspx (delaware.gov)
Context made report of “cure” for COVID-19 not false or misleading.
- 22-55641.pdf (uscourts.gov)
Safe harbor kept import of heart valve devices from providing basis for patent infringement claim.
- 22-1877.OPINION.3-25-2024_2290338.pdf (uscourts.gov)
Non-parody use of video failed Warhol test for copyright law’s fair-use doctrine.
- 010111022699.pdf (uscourts.gov)
Prior art that disclosed all elements of invention without combining them didn’t render the invention invalid because obvious without proof that a person of ordinary skill in the art would have felt a reason to combine the elements.
- 22-1998.OPINION.3-27-2024_2292085.pdf (uscourts.gov)
Lack of intent to use trademark in commerce provides basis for zapping registration.
- 22-16190.pdf (uscourts.gov)
Error in reading limitations into patent claims caused error in analysis of defense that prior art made claims invalid because obvious.
- 22-1258.OPINION.4-1-2024_2293991.pdf (uscourts.gov)
Details about firm’s scramble to hang onto stock exchange listing supported loss causation and falsity elements of securities fraud claims.
- 22-55760.pdf (uscourts.gov)
Antitrust Division’s formal statement that it “closed” a probe didn’t bar it from starting a new one or reopening the old one.
- 23-5065-2048352.pdf (uscourts.gov)
Party that claimed cost of arbitrating arbitrability put any remedy for harmful conduct out of reach failed to present proof that action in court would cost less.
- 220830pc.pdf (txcourts.gov)
For want of an expert report, a (copyright infringement) case was lost.
- 24a0075p-06.pdf (uscourts.gov)

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