Friday, August 31, 2012

Unsigned Opinion From Divided Federal Circuit

The Federal Circuit released an en banc opinion today in Akamai Technologies v. Limelight Networks. The decision was an unsigned per curiam opinion joined by six members of the court. The other five members of the court dissented. The unsigned, divided, en banc opinion is what caught my attention (those facts, not the contents of the opinion). That aside, the majority stated:
In the two cases before us, we address the question whether a defendantmay be held liable for induced infringement if the defendant has performed some of the steps of a claimed method and has induced other parties to commit the remainingsteps (as in the Akamai case), or if the defendant hasinduced other parties to collectively perform all the stepsof the claimed method, but no single party has performedall of the steps itself (as in the McKesson case).

Much of the briefing in these cases has been directedto the question whether direct infringement can be foundwhen no single entity performs all of the claimed steps ofthe patent. It is not necessary for us to resolve that issuetoday because we find that these cases and cases likethem can be resolved through an application of the doc-trine of induced infringement. In doing so, we reconsiderand overrule the 2007 decision of this court in which weheld that in order for a party to be liable for inducedinfringement, some other single entity must be liable fordirect infringement. BMC Resources, Inc. v. Paymentech,L.P., 498 F.3d 1373 (Fed. Cir. 2007). To be clear, we holdthat all the steps of a claimed method must be performedin order to find induced infringement, but that it is notnecessary to prove that all the steps were committed by asingle entity.

Foreclosure Judgment Reversed With Instructions To Enter Judgment In Favor Of Defendant Due To Lack of Prosecution

In Spencer v. EMC Mortgage Corp. (3D11-0136), the Third District reversed a judgment with instructions to enter judgment against the Plaintiff/Appellee for lack of prosecution. In July 1997, Spencer stopped making payments on her mortgage. In 2002, a foreclosure complaint was filed that, after a number of motions were filed, "the case languished for thirteen months. The trial court issued a notice of lack of prosecution (order to show cause why the case should not be dismissed), docketed on March 5, 2009, and it scheduled a hearing for the matter for May 29, 2009. There was no record activity in the case during the sixty-day period following the notice of lack of prosecution." Nothing was filed until three days before the hearing, when an unsworn document was filed that "advised the court that the order to show cause had been sent to the offices of prior counsel—not EMC’s successor counsel—and that he had only learned of the notice two weeks earlier by checking the docket." 

The Third DCA noted that "EMC’s brief is more candid. EMC’s counsel actually became aware of the notice of lack of prosecution (docketed March 5, 2009) in “late March or April, during a review of the lower court docket.” EMC’s attorney’s fee affidavit and billing records are even more definitive: a March 30, 2009, time entry narrative states “Review and analyze docket re order entered to show cause why case should not be dismissed for lack of prosecution.” EMC thus had ample time, over a month, within the sixty-day window allowed for record activity that would defeat dismissal. That fact, without more, takes this case out of the 'no notice received' exceptions detailed in Deutsche Bank National Trust Co. v. Basanta, 88 So. 3d 216 (Fla. 3d DCA 2011), and Boosinger v. Davis, 46 So. 3d 152, 154 n.2 (Fla. 2d DCA 2010)."

The court also determined further prosecution would be barred by the statute of limitations. In conclusion, the court stated:

The final summary judgment is reversed. The order denying the motion to dismiss for failure to prosecute the second, 2002 foreclosure case is reversed and vacated. The case is remanded to the trial court for dismissal and for an award of trial and appellate attorney’s fees and costs to Ms. Spencer.

As a footnote the conclusion quoted above, the Third District addressed an interesting issue regarding the availability of fees. The court stated: "In view of the likelihood that this action is barred by the applicable statute of limitations, a party may question whether any motion for attorney’s fees and costs may now be pursued. We conclude that such a motion may proceed based on the analysis in Katz v. Van Der Noord, 546 So. 2d 1047, 1049 (Fla. 1989) (holding that attorney’s fees may be recovered under a prevailing party provision even though the contract itself is determined to be unenforceable)."

In a special concurrence, Judge Schwartz began:

Because of the stumbling, bumbling, and general ineptitude of the mortgagee and its representatives, the appellant has managed to remain in the mortgaged premises without payment for over fifteen years after defaulting in 1997. While it therefore pains me deeply to do so, I concur in the reversal of the summary judgment of foreclosure against her. I do so for two reasons.

His entire special occurrence begins on page 10 of the opinion.