“While the terms of the parties’ settlement are confidential, we do know that all of the allegedly infringing goods have been removed from JC Penney’s website,” said The Fashion Law. “From the outset, the retailer denied any liability, as it held that the Levy Group, one of its New York City-based apparel suppliers, which was also named as a party in the suit, was responsible for indemnifying JC Penney in case of any infringement actions.”
The Patently-O blog has run an analysis by Quinn Emanuel’s Leeron Morad and Andrew Bramhall reviewing the impact of the elimination of Form 18 on pleading direct infringement.
“Early indications from the few issued district court decisions interpreting the amended Rules confirm that the pleading standard for direct infringement claims may indeed have changed,” they noted.
Morad and Bramhall looked at two decisions applying the amended rules that they said suggest plaintiffs were right to be concerned about a heightened requirement for pleading direct infringement.
In Raindance Techs v 10x Genomics, Judge Andrews of the District of Delaware granted 10x Genomics’ motion to dismiss claims of infringement of seven patents. The 35 page complaint would “almost certainly” have passed muster under Form 18, said the WilmerHale lawyers. The complaint also identified representative claims for each patent and the accused product. But Judge Andrews found the Raindance complaint lacking, saying the “essential factual allegations so not take up much space”. The judge also suggested 10x Genomics had not spent enough time investigating the alleged infringing product and had not attempted to relate the factual assertions with any of the claims. Judge Andrews applied the post-December 1 2015 direct infringement standard to the amended complaint, despite the fact it was filed in April 2015, “in the interest of justice”.
In InCom v The Walt Disney Co in the Central District of California, Judge Gutierrez denied Disney’s motion to dismiss despite applying the new standard. He found that InCom had done enough by specifically identifying the defendants’ products and “alleging that they perform the same unique function as plaintiff’s patented system”. He did not require InCom to identify any exemplary asserted claims in its complaint.
They said these two cases suggest that “even under the heightened ‘plausibility’ standard, we would not be surprised to see meaningful differences emerge in the ways different districts – and even individual judges within districts – apply that standard to direct infringement claims.”
Led Zeppelin trial to proceed
Judge Gary Klausner of the Central District of California has ordered a copyright trial over Led Zeppelin’s 1971 song “Stairway to Heaven” to proceed, reports Reuters.
The judge believes the song and 1967 instrumental “Taurus” by Spirit are similar enough that a jury should decide whether Robert Plant and Jimmy Page are liable for copyright infringement.
The lawsuit was bought by the trustees of Randy Wolfe, the late guitarist in Spirit and composer of Taurus. It is claimed the first two minutes of Stairway to Heaven was inspired by Taurus. The two bands toured together in 1968 and 1969.
The defendants claim the chord progressions are so common they do not deserve copyright protection.
Klausner wrote: "While it is true that a descending chromatic four-chord progression is a common convention that abounds in the music industry, the similarities here transcend this core structure. What remains is a subjective assessment of the 'concept and feel' of two works ... a task no more suitable for a judge than for a jury."
The judge dismissed claims against Led Zeppelin bassist John Paul Jones and Warner Music. He also said the trustee can only receive 50% of any damages, as stipulated in a 1967 contract Wolfe signed.