With a hat tip to Justin Sobaje at IP Litigtion Current, there appears to be a growing – and national – trend of district courts entering troll-only prosecution bars, and not just on unopposed, agreed motions.
In the E.D. Texas, the Court held that the troll and the target were not similarly situated, making a one way prosecution ban appropriate. Smartflash LLC v. Apple Inc., No. 6:13-cv-447 (E.D. Tex. May 12, 2014). D. Delaware has also come to similar conclusions. DN Lookup Technologies v. Charter Communications, Inc., No. 11-1177-LPS (D. Del. June 11, 2012); Systems, LLC v. Draeger Medical GmbH, No. 11-1114-RGA (D. Del. Dec. 28, 2011) (holding that what is good for the goose is not necessarily good for the gander).
What does this mean for retailers? It allows retailers the freedom to exclude a troll’s counsel that receives your highly confidential technology information from prosecuting future patents using that knowledge, without limiting your own choice of counsel if you are prosecuting your own patents in the space. While most retailers are not prosecuting in the space trolls are suing them in, it is still nice to have available if you eventually need it.