Daniel Bond of Kirkland & Ellis, in a session on demand letters yesterday, gave some advice on "avoiding the Meep Meep effect." This turned out to be a reference to Wile E. Coyote's attempts to catch The Road Runner.
"Consider the Coyote," said Bond. "Is he just a cartoon villain or is he a cautionary tale? He never gets his man and often injures himself in the process. He is using the wrong tools in the wrong way."
So do not come on too strong when sending demand letters. Bond advised not letting a focus on your adversary blind you to risks, using the right tool for the right job, always being mindful of ways your letter can backfire, and approach each demand letter with fresh eyes.
He particularly noted the increasing risk of cease and desist shaming, where demand letters are posted on the Internet and attract bad publicity. "In the Internet age, nothing is private!" He added saying the letter is copyrighted or confidential will not work: "There is no case law supporting that argument."
In the same session, Woody Pollack of GrayRobinson gave an overview of states that have passed anti-patent enforcement laws. Vermont was the first state to do so, in 2013. "A wave of states followed Vermont's lead," he said. Now, 32 states have anti-patent enforcement laws (five of those came this year). "Of the 18 states left, only eight have not even tried, so I imagine others will be successful," said Pollack.
He said that 43% of the patent case filing from 2012-2015 was in states that now have anti-patent enforcement laws. Some 21 of the states allow both private actions and attorney general actions, seven only allow attorney general actions, and four only allow private causes of action. The states differ on how they assess a bad faith assertion of patent infringement: 21 states use factors while 11 use definitions. Pollack concluded that you should know the law of the state you're dealing with, identify the patent and owner, identify an accused product, preferably identify asserted claims, and be careful.
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