COVID-19 Lays Bare the Cruelty of Neoliberalism

JOSEPH MARGULIES

Cornell law professor Joseph Margulies observes how the COVID-19 pandemic is exposing the cruel folly of neoliberal governance. Margulies points out that neoliberalism—the idea that social problems are better solved by the private sector than by government—has brought millions of Americans to the edge of financial and physical ruin, and COVID-19 will push them over. He argues that now more than ever, we must be communitarians rather than individualists.

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Myco Industries, Inc. v. Blephex, LLC

Docket: 19-2374

Opinion Date: April 3, 2020

Judge: O'Malley

Areas of Law: Civil Procedure, Communications Law, Intellectual Property, Patents

Myco believed its competitor, BlephEx, made false and misleading statements about Myco’s product and whether it infringed BlephEx’s patent, entitled “Method and Device for Treating an Ocular Disorder.” The district court preliminarily enjoined BlephEx from making allegations of patent infringement and from threatening litigation against Myco’s potential customers. The Federal Circuit reversed. Federal law requires a showing of bad faith before a patentee can be enjoined from communicating his patent rights. A showing of “bad faith” must be supported by a finding that the claims asserted were objectively baseless. There was no adequate basis to conclude that allegations of patent infringement would be false or misleading. Even if the injunction were narrowly tailored to allegations of infringement and threats of litigation against Myco’s potential customers, the “medical practitioner immunity” provision of 35 U.S.C. 287(c) does not blanketly preclude a patent owner from stating that a medical practitioner’s performance of a medical activity infringes a patent. Myco asked the court to assume, without any supporting evidence, that a doctor would have interpreted general statements as an accusation of patent infringement and a threat of litigation against the doctor herself.

Intellisoft, Ltd. v. Acer America Corp.

Docket: 19-1522

Opinion Date: April 3, 2020

Judge: Timothy B. Dyk

Areas of Law: Civil Procedure, Intellectual Property, Patents

Intellisoft sued Acer in California state court, asserting state law claims, including misappropriation of trade secrets. After more than three years of litigation, Acer sought to plead a patent inventorship counterclaim under federal law and thereafter removed the action to a federal district court, which denied Intellisoft’s motion to remand and later entered final judgment in favor of Acer. The Federal Circuit reversed. Removal was not proper under 28 U.S.C. 1441. Acer’s arguments do not establish that Intellisoft’s trade secret claim necessarily raised patent law issues. Intellisoft did not need to establish patent infringement to prove trade secrets misappropriation. A plaintiff’s reliance on a patent as evidence to support its state law claims does not necessarily require the resolution of a substantial patent question. Removal was not proper under section 1454, which requires that the claim supporting removal must be contained in an operative pleading. Acer’s cross-complaint was not operative, the counterclaim was never “asserted” under section 1454.