Litigation & Trial - Legal articles by personal injury attorney Max Kennerly

It’s no secret that patent infringement is one of the hottest areas in which to practice law these days.  The inventor-friendly principles that governed the original United States Patent Office back when Thomas Jefferson ran it (though he personally wasn't too much a fan of patents) are still the law today, even though the scope of prior art in most industries has expanded far beyond the point where any patent examiner could reasonably review it, much less ensure an inventor in an ex parte proceeding fairly describes it. These days, if an inventor has enough determination, or enough funds to ... Continue Reading

One of the nice things about the being a Justice of the United States Supreme Court is that you never have to explain yourself. You don't have to ask questions at oral argument. You don't have to read the briefs filed by the parties, not really, because you can interpret the facts stated and arguments raised however you want. You certainly don't have to be consistent across your own opinions. In one case, you can make an argument inconsistent with the argument you made in another case. Few people will notice and, worse, fewer will care, because caring about the ... Continue Reading

There's been a wave of antitrust class actions predicated on patent misuse by pharmaceutical companies of the past decade. The troublesome Illinois Brick decision prevents "indirect purchasers" — which means you, me, and our health insurance plans — from bringing federal antitrust claims, so plaintiffs' lawyers have had to get creative in use of state law to obtain relief for companies that have been overcharged for their medication, like the Sheet Metal Workers tried to do with the Pennsylvania Unfair Trade Practices and Consumer Protection Law (PUTPCPL). Given decades of efforts by anti-competition legislatures and judges to undermine consumer fraud ... Continue Reading

On Sunday, the New York Times returned to third-party funding of lawsuits with "Investors Put Money on Lawsuits to Get Payouts:" Large banks, hedge funds and private investors hungry for new and lucrative opportunities are bankrolling other people’s lawsuits, pumping hundreds of millions of dollars into medical malpractice claims, divorce battles and class actions against corporations — all in the hope of sharing in the potential winnings. ... Total investments in lawsuits at any given time now exceed $1 billion, several industry participants estimated. Although no figures are available on the number of lawsuits supported by lenders, public records from ... Continue Reading

In a patent infringement suit, the defendant's first line of defense is almost always a counterclaim that the plaintiff's patent is either invalid or unenforceable. There's little to lose in raising the counterclaim and potentially a lot to gain, including the possibility of a judgment rendering the patent invalid forever. Patently-O refers us to Golden Hour Data Systems, Inc. v. emsCharts, Inc. and Softtech (Fed. Cir. August 9, 2010), which partly affirmed and partly vacated a District Court's Judgment as a Matter of Law overturning a $3,500,000 jury verdict in favor of Golden Hour, owner of United States Patent No. ... Continue Reading