Willfulness? Enhanced Damages? It’s a Judge-ment Call

By Shaukat A. Karjeker

Depending upon where you stand, on June 14, 2012, the Federal Circuit Court of Appeals either executed a “bloodless” coup d’état, or brought order to the issue of enhanced damages in patent cases.  In Bard Peripheral Vascular, Inc. et al. v. W. L. Gore and Associates, Inc. ((Bard Peripheral Vascular, Inc. v. W. L. Gore & Associates, Inc., No. 03-CV-0597, slip op (Fed. Cir. June 14, 2012); 2012 LEXIS 13561. Bard has been followed in several cases, including: Highmark, Inc. v. Allcare Health Mgmt. Sys., (Fed Cir 2012), 701 F.3d 1351; 2012 U.S. App. LEXIS 25054;  Sargent Mfg. Co. v. Cal-Royal Prods., (D Con), 2012 U.S. Dist. LEXIS 105260;  Tomita Techs. United States, LLC v. Nintendo Co., (SD NY), 2013 U.S. Dist. LEXIS 8111; and Carnegie Mellon Univ. v. Marvell Tech. Group, LTD., (WD Pa), 2012 U.S. Dist. LEXIS 157337 (noting that mixed questions of law and fact may be resolved by submitting special interrogatories to the jury on fact issues).)), the court ruled that the preliminary determination of “willfulness,” a sine qua non for enhancement of damages, is a matter of law for the court to determine, and subject to de novo review on appeal.  This takes the issue out of the hands of the jury and places both the determination of willfulness as well as the enhancement of damages in the hands of the trial judge.  Since judicial interpretation of statutes is retrospective, Bard applies to all ongoing litigation ((Voda v. Cordis Corp., 536 F.3d 1311 (Fed. Cir. 2008); 2008 LEXIS 17542.)).

Use Unlicensed Music in Wedding Films at Your Peril

by Vincent J. Allen

Quantum leaps have been made in both the quality and popularity of wedding films over the past 10 years. The advances are a result of technology improvements in post-production editing systems and the introduction of low profile cameras that rival the production quality of movie sets. Most recently, the availability of relatively low cost DSLR cameras has added a cinematic element to event film productions that previously was not available.

Event filmmakers have begun creating works of art that capture the emotions of the wedding day. So it is no surprise that wedding films are often set to music selected to create the desired mood. Historically, event filmmakers have not given much thought to obtaining permission to use a popular song in a wedding film, and some have even operated under the erroneous belief that purchasing the song on a CD or iTunes will avoid a copyright violation. Event filmmakers have now begun paying more attention to copyright issues as rights holders have stepped up enforcement activity directed to unlicensed use of music on the internet.