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Trends in IP Litigation and the Impact of 2020 Moving Forward

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Produced on November 17, 2020

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Course Information

Time 1h 2m
Difficulty Intermediate
Topics covered in this course: Intellectual Property Litigation

Course Description

Between a global pandemic, a Supreme Court engaged on a host of IP issues, and an increased willingness on the part of lawmakers to reexamine past IP laws, 2020 has been a year unlike any other for IP attorneys, with sometimes unclear implications for IP litigation. This program, presented by Skadden attorneys Rachel Blitzer, Jordan Feirman, and Ed Tulin, will discuss recent developments and trends in copyright, patent, trade secret, and trademark law, with a particular focus on this past year and what it may mean for IP litigation going forward.



Learning Objectives:

  1. Analyze trends in the content and location of IP lawsuits
  2. Review the impact of the COVID-19 pandemic on IP litigation practice
  3. Track recent proposed or enacted legislation that will impact IP litigation
  4. Identify and discuss "hot topic" substantive IP issues and key judicial decisions

Credit Information

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Faculty

Jordan Feirman

Skadden, Arps, Slate, Meagher & Flom LLP

Jordan Feirman’s primary practice focuses on intellectual property and sports litigation, with experience handling all stages of cases involving copyrights, trademarks, false advertising, unfair competition, domain names, counterfeit goods, contract, and licensing disputes, and consumer class actions. Mr. Feirman also regularly represents clients in connection with intellectual-property enforcement issues, risk analyses, consumer surveys, opposition and cancellation proceedings before the U.S. Trademark and Trial Appeal Board, international intellectual property protection, and corporate mergers and acquisitions.

Mr. Feirman has served on the Copyright and Literary Property Committee of the New York City Bar presents on key developments in copyright and trademark law in webinars and has authored numerous amicus briefs, articles, and publications addressing emerging issues in copyright, trademark, and unfair competition law. Mr. Feirman co-authored the chapter on “Appeals” in the ABA Copyright Litigation Strategies treatise. In addition, Mr. Feirman represents a variety of musicians, artists, authors, and nonprofit organizations on a pro bono basis.  

Significant representations include:

 The National Hockey League in obtaining a permanent injunction and damages from a company that made beer steins replicating the design of the Stanley Cup trophy, and successfully defending against that company’s counterclaims challenging the league’s ownership of trademarks and trade dress rights in connection with the Stanley Cup trophy;

Matthew Bender & Company in securing dismissal of a consumer class action complaint in New York state court for alleged contractual breaches and deceptive practices regarding the company’s New York Landlord-Tenant Law publication, and affirmance of that dismissal on appeal;

Pinduoduo Inc. and its affiliates in securing dismissal on jurisdictional grounds of claims alleging trademark infringement and unfair competition based on activities taking place on the Pinduoduo e-commerce platform, and in obtaining an award of attorneys’ fees and costs against the plaintiff under the Lanham Act;

Fresh Del Monte Produce Inc. in multiple litigations and arbitrations, including securing a favorable jury verdict and post-trial relief against Del Monte Corporation for false advertising and breach of a trademark license agreement, and enforcing Fresh Del Monte Produce Inc.’s intellectual property rights in the U.S., Europe, the Middle East, and Africa; - MCS Advantage, Inc. and MCS Healthcare Holdings LLC, in a Lanham Act lawsuit in Puerto Rico concerning a competitor’s advertising regarding eligibility for new supplemental benefits available through Medicare;

Red Bull North America and its corporate parent in the defense of multiple putative class actions across the country challenging the nature and content of Red Bull’s advertising statements concerning its products’ benefits;

- The National Football League and its member clubs in a variety of intellectual property enforcement matters as well as a federal lawsuit brought by sports photographers asserting claims including copyright infringement and violation of U.S. antitrust laws;

MGA Entertainment Inc. in obtaining summary judgment against a claim of copyright infringement by the company’s “Bratz” dolls and affirmance of that judgment on appeal;

- The National Football League, National Basketball Association, PGA Tour and Major League Baseball in amicus briefs submitted to multiple U.S. Courts of Appeals concerning copyright issues and compulsory licensing in the FilmOnX/Aereokiller internet rebroadcasting cases;

-The National Collegiate Athletic Association, National Basketball Association, National Football League, National Hockey League and Major League Baseball in federal litigation concerning the legalization of state-sponsored sports gambling in the state of New Jersey; 

The National Collegiate Athletic Association, as a member of the trial team in a class action concerning the Association’s rules governing amateurism and student-athlete compensation;

- Jackson Hewitt Tax Service in litigating and ultimately settling a Lanham Act false advertising lawsuit against H&R Block; and

The Walt Disney Company in its $4 billion acquisition of Lucasfilm, Ltd.

Recent Publications

“Blunting Copyright Enforcers’ Excessive Settlement Demands,” Law360, June 3, 2020'

“Video Gaming / E-Gaming Law Update,” Skadden, Arps, Slate, Meagher & Flom LLP, August/September 2019

“US Supreme Court Strikes Down Ban of ‘Scandalous’ Trademarks,” Skadden, Arps, Slate, Meagher & Flom LLP, June 25, 2019

“US Supreme Court Holds That Bankrupt Companies Cannot Rescind Trademark Licenses,” Skadden, Arps, Slate, Meagher & Flom LLP, May 21, 2019

“U.S. Supreme Court Issues Two Unanimous Rulings Clarifying Meanings of ‘Registration’ and ‘Full Costs’ in Copyright Act,” New York Law Journal, March 27, 2019, and Skadden, Arps, Slate, Meagher & Flom LLP, March 5, 2019

“Federal Circuit Denies PTO Attorneys’ Fees,” Skadden, Arps, Slate, Meagher & Flom LLP, July 31, 2018

“Supreme Court to Clarify What Constitutes a ‘Registration’ Under the Copyright Act,” Skadden, Arps, Slate, Meagher & Flom LLP, June 29, 2018

“Supreme Court Seeks to Clarify Copyrightability of Design Features on Useful Articles in Cheerleading Uniform Case,” Skadden, Arps, Slate, Meagher & Flom LLP, March 23, 2017

Chapter 28 “Appeals,” Copyright Litigation Strategies, American Bar Association, 2017

“The SCOTUS Kirtsaeng decision: where do we go from here?” World Intellectual Property Review, July 29, 2016



Edward L. Tulin

Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates

Ed Tulin concentrates his practice on complex litigation and arbitration involving patents, patent licensing disputes, copyrights, and trade secrets in the fields of biochemical processes, pharmaceutical products, medical devices, electrical engineering, semiconductors, computer engineering and software, mechanical engineering, environmental engineering, and business methods. Mr. Tulin also has extensive experience with IP licensing and diligence matters, including patent portfolio analyses, freedom-to-operate opinions, and contract drafting. In addition, Mr. Tulin is admitted to practice before the U.S. Patent and Trademark Office, where he has been involved with reexamination, interference, and inter partes review proceedings, including multiple PTAB trials.

Mr. Tulin has assisted in numerous matters, including:

- defending a major U.S. retailer in a trade secret dispute involving e-commerce solutions in the Eastern District of Arkansas; - representing a pioneer in the development of virtual reality software in a trade secret and breach of contract dispute in the Northern District of Texas; - defending a U.S. manufacturer of mechanically locking laminate flooring products in patent litigation in the Eastern District of Wisconsin. Was part of the trial team in a threeweek jury trial and three-day bench trial; - defending a global manufacturer of flavors and fragrances in a trade secret misappropriation case involving biochemical spray-dry processes and related mechanical equipment in the District of New Jersey; - defending a major U.S. bank in a patent infringement suit involving e-commerce patents in the District of Delaware, which included arguing a summary judgment motion that led to dismissal of the suit; - representing a New York medical school in a breach of contract action relating to H1N1 vaccine technology in the New York Supreme Court’s Commercial Division; - representing three companies in a patent infringement suit involving high-speed industrial molding machines in the Eastern District of Wisconsin; - representing a clean energy startup in Lanham Act and state unfair competition claims arising out of false assertions of patent ownership and royalty rights in the Eastern District of Michigan. 

Mr. Tulin also has an extensive pro bono practice, which has included representation of clients seeking asylum and clients seeking Social Security disability benefits, as well as amicus work for the Innocence Project and patent prosecution.


Publications

“High Court Laches Ruling May Be Much

Ado About Nothing,” Law360, March 16, 2017

“A Look at Post-Alice Rule 12 Motions Over

the Last 2 Years,” Law360, January 27, 2017

“Fast & Furious: Post-Alice Dismissals of

Patent Infringement Cases Using Rule 12

Motions,” Bloomberg BNA’s Patent, Trademark and Copyright Journal, March 20, 2015


Presentations

Speaker, “This Month in IP,” Skadden webinar, July 30, 2018
Panelist, “Wrongful Conviction 2017: Litigating Exoneration Cases,” Practicing Law
Institute, December 8, 2017
Presenter, “Litigating Software IP Disputes,”
8th Annual Patent Law Institute, New York
February 3-4, 2014



Rachel R. Blitzer

Skadden, Arps, Slate, Meagher & Flom LLP

Rachel Blitzer has more than 12 years of experience in intellectual property litigation and counseling. Ms. Blitzer focuses her practice on technically complex litigations in the areas of a trade secret, patent infringement, breach of contract, and antitrust. Ms. Blitzer’s litigation experience spans a broad range of technologies, including software applications, food processing technology, financial products, industrial machinery, and chemical products, and includes defending several clients in suits brought by nonpracticing entities.

Ms. Blitzer has litigated numerous cases to trial and most recently was a key member on the team responsible for securing a $500 million jury verdict in favor of ZeniMax Media and id Software in trade secret misappropriation and breach of contract litigation against Oculus VR and its executives. On the patent side of her practice, she recently secured an early dismissal of a lawsuit alleging deceptive trade practices and infringement of weather prediction software patents for a reinsurance provider. Ms. Blitzer also has particular experience in Hatch-Waxman litigations and has represented brand-name and generic pharmaceutical companies at both the trial and appellate levels, as well as in post-settlement antitrust actions.

She also has litigated and consulted on a number of contract actions, including matters involving check-processing systems, industrial chemicals, pharmaceuticals, and trademarks. She has secured multiple favorable settlements on the eve of trial, including for a food processing equipment manufacturer acting as plaintiff, and for a rebate service provider defending claims of tortious interference with contractual relations and prospective business advantage. Ms. Blitzer also counsels clients on corporate matters involving technical issues and has advised in the areas of RFID technology, software patents, terahertz systems, synthetic super-materials, and multivitamins.

Additionally, Ms. Blitzer devotes a substantial portion of her practice to pro bono work, including political asylum petitions, immigration appeals, Violence Against Women Act self-petitions, unemployment insurance representation, and case reviews for The Innocence Project. Ms. Blitzer also is head of the Steering Committee for Skadden’s Latin/Hispanic affinity network.

Representative engagements include, among others:

  • representation of a major video game company in its copyright infringement case against a Fortune 500 company, resulting in a $500 million jury verdict following a three-week trial;
  • Hatch-Waxman litigation, securing dismissal of the complaint at the Federal Circuit on behalf of an API manufacturer defendant, resulting in new legal precedent;
  • invalidating a patent asserted against a large insurance provider on §101 grounds at the motion to dismiss stage;
  • an antitrust proceeding following the settlement of a Hatch-Waxman case, securing dismissal of sham litigation claims against a brand-name drug client, followed by a favorable settlement;
  • securing a favorable settlement on the eve of trial for the plaintiff, a food processing equipment manufacturer;
  • ongoing representation of a Fortune 500 retailer in defending against claims including trade secret misappropriation and breach of contract; and
  • ongoing representation of an oil and gas machinery manufacturer in the assertion of its patents in multiple litigations.

Education

  • J.D., The University of Chicago Law School, 2005
  • B.A., Yale University, 2002

Admissions

  • New York
  • U.S. Patent and Trademark Office
  • U.S. Court of Appeals for the Federal Court





Reviews

AL
Andrea L.

Very rushed but great content

RP
Robert P.

EXCELLENT! One of the best CLE programs I have encountered.

EB
Earl B.

trendy

DH
Diane H.

Excellent presentation. Judge Albright's ears were no doubt burning.

JH
jeffrey H.

good group

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