Commercial Roundup has some catching up to do this week. See the jumbo installment below. Multiple terms in speech-recognition patent deserved broader construction. 22-1939.OPINION.2-16-2024_2271458.pdf (uscourts.gov) Allowing any discovery on arbitrability amounts to denial of stay and authorizes immediate appeal. 23-30182-CV0.pdf (uscourts.gov) Internet service provider’s failure to boot subscribers it knew often pirated music online made it a contributory copyright infringer. 211168.P.pdf (uscourts.gov) FTC sues in Oregon to block $24.6 billion “supermarket mega merger” between K ..read more

Welcome to The Contingency‘s Commercial Roundup for February 21. We have a ton of cases to catch up on, so let’s get right to it. “Single” in patent claim preamble limited apparatus to finding just one biomolecule. 22-1410.OPINION.1-9-2024_2250463.pdf (uscourts.gov) Auto products buyer didn’t waive claim for seller’s breach by buying more from it. 221617.P.pdf (uscourts.gov) Bank that administered famous artist’s trust didn’t allege a viable RICO claim against trust beneficiaries for their efforts to increase payments from trust. 223331P.pdf (uscourts.gov) Copyright Act pre-empted s ..read more

Spirit: The Home of the Bare Fare Keeps Flying. On January 17, 2024, a judicial appointee of a President whose administration sharply curtailed antitrust enforcement* blocked a $3.8 billion attempt by JetBlue to merge its way into making the Big Four U.S. airlines (American, Delta, United, and Southwest) into the Big Five (with JetBlue as the fifth member). After a 17-day bench trial, U.S. District Judge William G. Young in Boston held that JetBlue’s plan to gobble up the leading “ultra-low-cost carrier”–Spirit Airlines–“would substantially lessen competition in a relevant market.” Judge Young ..read more

Welcome to Commercial Roundup! This issue notes an Epic antitrust win against Google, comments by yours truly on the likelihood of an Antitrust Division challenge to a $1.8 billion merger between Alaska Airlines and Hawaiian, Susman Godfrey’s National Boutique of the Year award, and tips on themes for your next jury trial. And, oh yes–a rundown of the significant appellate decisions you should know about if you handle complex commercial cases. In post-grant review, missing one-year deadline didn’t defeat Patent Trial and Appeal Board’s final ruling. http://cafc.uscourts.gov/opinions-orders ..read more

U.S. Circuit Judge Jennifer Sung made the comment December 6 during oral argument in the Federal Trade Commission’s ongoing effort to block Microsoft’s $69 billion purchase of Activision Blizzard, the biggest U.S. maker of video games. (Hat tip to Josh Sisco at Politico Pro.) The FTC claimed that the merger threatened to substantially reduce competition, lost after a bench trial, and sought reversal by the Ninth Circuit. The deal closed in October. “Competition, not competitors” Judge Sung’s remark caught my eye because it inverts a mantra you often see in court opinions rejecting antitrust c ..read more

The $1.9 billion deal Alaska Airlines signed with Hawaiian Airlines on December 3 would enable the competitors to collaborate on the 12 routes they both fly between the Aloha State and cities on the U.S. West Coast–a small part of their overall networks. Does that mean the Antitrust Division will challenge the deal? Probably. I see a couple of ways to assess the odds of action by the Antitrust Division. The first involves the 2023 Draft Merger Guidelines. Although they haven’t taken effect, they reflect the thinking of Antitrust Division (and FTC) leadership, and several of them seem on point ..read more

Welcome to the November 15, 2023 edition of Commercial Roundup. It will catch you up on the latest appellate decisions by federal appellate courts and the highest courts in Delaware, New York, and Texas on antitrust, arbitration, class actions, intellectual property, securities, and other important issues in complex business and commercial disputes. Expert witness who consulted with plaintiff but didn’t sign an NDA could testify as expert for defendant. http://media.ca8.uscourts.gov/opndir/23/10/231004P.pdf Facebook’s public statements about users’ control of their data and risks of its m ..read more

Last Friday, October 27, U.S. District Judge Amit Mehta overruled an objection by Google’s trial counsel to a question about how much the online search and ad giant pays Apple and other browser providers for making Google’s search engine the default on their browsers. The lawyer claimed that making the dollar amount public would hurt Google’s negotiating position in future talks about the size of its payments to browser providers to induce them to rig their browsers to use Google search by default. The U.S. Department of Justice’s Antitrust Division and 38 states brought the case in the U.S ..read more

Welcome back to Commercial Roundup. This installment will catch you up for the last several weeks. “Comparison prior art” in design-patent case must involve the “article of manufacture” in the patent claim. http://cafc.uscourts.gov/opinions-orders/21-2299.OPINION.9-15-2023_2190910.pdf Need a lift? Read this. https://www.law360.com/pulse/articles/1717375/5-life-lessons-from-making-partner-as-a-solo-parent Antitrust Magazine just got better. https://www.omm.com/our-firm/media-center/in-the-news/omelveny-antitrust-competition-lawyers-appointed-to-leadership-roles/ FTC sues Amazon in it ..read more

Here you go–Commercial Roundup for the couple of weeks ending September 14, 2023 Data breach that exposed plaintiff’s personally identifying information to hacker caused “concrete” harm and conferred Article III standing to sue https://www.ca2.uscourts.gov/decisions/isysquery/8c90c0a3-24ff-4991-9b0f-8d90fcd8a002/9/doc/22-319_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/8c90c0a3-24ff-4991-9b0f-8d90fcd8a002/9/hilite/ Notes from commercial loan syndication don’t qualify as “securities” under state blue-sky law. https://www.ca2.uscourts.gov/decisions/isysquery/8c90c0a3-24ff-4 ..read more