In May, we saw examples of how ND Cal judges apply the stricter
pleading requirements of Twombly/Iqbal both to causes of
action (such as
claims for alleged breach of the GNU General Public License)
and, unlike their sister districts in California,
to affirmative defenses. A pair of decisions about patent local
rule contentions (analyzed
here and
here) reminds us to keep an eye on how contentions fit into the
overall progression of a case. In the perpetual dance between the
district court and the Federal Circuit, one judge
applied the Kessler doctrine, recently ruled to be alive
and well, to bar further litigation over a product once found not
to infringe, while another judge
allowed a case to proceed for now despite the appellate court's
seemingly conclusive statements about patent exhaustion.
Meanwhile, in state court, the California Court of Appeal made
waves by holding that
ideas can be entitled to trade secret protection. And on
Capitol Hill, dreams of further patent reform were put on ice by Sen. Leahy's announcement that he was taking
the patent bill off the Senate Judiciary Committee agenda.
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