Keyword advertising is not a new phenomenon. Some believe that various forms of keyword advertising have been around since as early as 1996. . Generally defined as a “form of advertising on the Internet in which a business pays to have an advertisement [for] a website appear on [a consumer’s] computer screen when [the consumer] uses a particular word or phrase to search for information on the internet,”  keyword advertisements play a very important role in the marketing and advertising of many businesses.
In an effort to promote student involvement in the Indiana Law Review Blog, the Indiana Law Review held a writing competition open […]
“To preserve legislative independence, . . .‘legislators engaged in the sphere of legitimate legislative activity should be protected not only from the consequences of litigation’s results but also from the burden of defending themselves.’” .
“Private lawsuits threaten to chill robust representation by encouraging legislators to avoid controversial issues or stances in order to protect themselves.” .
“We are governed by laws, not by the intentions of legislators.” .
“[I]t simply is not consonant with our scheme of government for a court to inquire into the motives of legislators . . . .” .
“All politics is local.” . Former Speaker of the House Thomas Phillip “Tip” O’Neill used these words to remind federal politicians to “pay attention to their own backyards and take care of their folks.” . The concept also carries a broader meaning – that local legislative actors are most intimately entrusted with providing services to the public. Often, local legislative actors are not afforded the opportunity to focus solely on their legislative jobs. Their role as town council member, city council member, or state legislator is often only a part-time job for which they must supplement their salary with other work. Federal legislators, on the other hand, are afforded full-time jobs and a staff to assist them in performing their functions. In this context, when a city or town is sued for taking some legislative action, the local legislator should be protected from judicial inquiry to the same extent as the federal legislator. Unfortunately, a circuit split has developed, with some federal courts providing a lesser legislative immunity to local legislators than is provided to federal legislators.
A litigator is representing a client in a personal injury case where the client has suffered significant injuries. Although the litigator has strong evidence that the client was injured, the damage award could vary by a wide margin. The litigator would like to narrow the lower margin without sacrificing the higher margin, but is not sure how to do so. An interrogatory asking the defendant to place a value on the client’s damages would certainly be objected to. Nor would the defendant’s deposition prove fruitful because the defendant cannot be expected to accurately value the plaintiff’s claim on the spot. Rather, the litigator may find the solution through requests for admissions.
Requests for admission are a powerful but underutilized discovery tool that allow attorneys to ask an opposing party to admit any matter relevant to the case and not protected by privilege. . Unlike the Federal Rules, Indiana does not limit these matters to enumerated categories. . Instead, all non-privileged, relevant matters are proper, including “an opinion, a contention, or a legal conclusion, if the request is related to the facts of the case.” . This allows attorneys to significantly clarify their adversaries’ contentions and gain the upper hand at trial.
On November 14, 2014, the Indiana Court of Appeals upheld a $1.44 million jury verdict against Walgreen Company (“Walgreen”) for a pharmacist’s breach of privacy obligations. . The opinion began, “[i]n this case, a pharmacist breached one of her most sacred duties by viewing the prescription records of a customer and divulging the information she learned from those records to the client’s ex-boyfriend.” . That brief summary of the case’s fact pattern provides the foundation of what ultimately led to a large jury verdict against Walgreen, derived solely from the acts of its employee.
Section 285 of the Patent Act allows a prevailing party to recover attorneys’ fees in “exceptional” cases. . In Octane Fitness, LLC v. Icon Health & Fitness, Inc.,  and Highmark Inc. v. Allcare Health Management Systems, Inc.,  the Supreme Court relaxed the requirements for proving an “exceptional” case in three significant ways: (1) now a party who files a section 285 motion need only prove that a case is “exceptional” by a preponderance of the evidence;  (2) the movant no longer has to prove bad faith and objective baselessness,  but instead must prove that, under the “totality of the circumstances,”  the case “stands out from others,” considering numerous factors, such as “frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need . . . to advance considerations of compensation and deterrence;”  and (3) the appellate standard of review under section 285 is now a deferential abuse-of-discretion standard. .
Intellectual property litigators must be aware of these changes and also how various district courts are applying them. This article analyzes the dozens of cases that have applied Octane Fitness and Highmark, with a particular focus on district court opinions,  and identifies helpful trends and insights for patent litigators.
Lori M. Craig
J.D. Candidate, 2014, Indiana University Robert H. McKinney School of Law
B.A. 1997, Indiana University – Bloomington, Bloomington, Indiana.
“’For Christ’s sake, let me die in peace!’ he said.
. . .
‘You know perfectly well you can do nothing to help me, so leave me alone.’
‘We can ease your suffering,’ said the doctor.
‘You can’t even do that; leave me alone.’
. . .
He drew in a breath, broke off in the middle of it, stretched himself out, and died.” .