Alison Frankel

FTC sides with Apple on essential patents, undercuts Motorola

December 6, 2012

Last month, when a majority of the commissioners on the Federal Trade Commission issued a statement warning about aggressive assertion of standard-essential patents in connection with the merger of two companies that make car air conditioners, Reuters took note. On its own, the FTC’s statement wasn’t particularly interesting. But the antitrust watchdog is reportedly looking into allegations that Google is abusing the portfolio of essential tech patents it acquired in its merger with Motorola. Perhaps the FTC’s statement in the auto air-conditioning case, Reuters said, was an indicator of where the commission stood on Google’s use of Motorola’s patents.

Accusations of confidential witness chicanery backfire on defense lawyer

December 5, 2012

The securities class action firm Robbins Geller Rudman & Dowd keeps running into problems with confidential witnesses. I’ve previously told you about a case in federal court in Manhattan in which U.S. Senior District Judge Jed Rakoff held a seven-hour hearing to decide if the plaintiffs’ firm misrepresented its contacts with four former Lockheed Martin employees who disavowed the allegations Robbins Geller attributed to them in a securities fraud complaint against Lockheed. Rakoff hasn’t ruled but, at the end of the hearing in October, said that three of the former Lockheed employees that Robbins Geller cited as confidential witnesses weren’t credible when they denied speaking with the plaintiffs’ firm. The Manhattan judge is now pondering whetherhearsay evidence obtained from confidential witnesses is sufficient to push securities class actions past defense dismissal motions.

Seismic fallout from ruling on drug marketing and free speech?

December 4, 2012

On Tuesday, the Justice Department announced its record recovery of nearly $5 billion in False Claims Act settlements in 2012, exceeding the previous annual record by $1.7 billion. In the last four years, according to remarks by Acting Associate Attorney General Tony West, the Justice Department had netted $13.3 billion in false claims settlements, much of it from pharmaceutical companies accused of healthcare fraud.

In gene case, SCOTUS to confront Federal Circuit on patentability

December 3, 2012

One of the great judicial dialogues of the last few years has been the back-and-forth between the U.S. Supreme Court and the Federal Circuit Court of Appeals over what’s patentable. The roots of the debate predate the creation of the Federal Circuit in 1982, but valuable software and biotech patents have lent urgency to the issue — and divergent views by the Supreme Court and the Federal Circuit on patentability standards have led to a series of rulings in which the justices contradict the appeals court but the Federal Circuit refuses to take the hint and continues to go its own way. The conflict has created so much uncertainty that over the summer two petitions for en banc review, including one in a case remanded by the Supreme Court, begged the Federal Circuit to resolve its own internal split on how much deference to give the Supreme Court.