Patent Law’s Goldilocks Rule: Anticipatory Suit Exception to the First-to-File Rule

Intellectual Property special counsel Aaron Frankel and associate Nobumasa Hiroi’s article, “Patent Law’s Goldilocks Rule: Anticipatory Suit Exception to the First-to-File Rule,” appeared in the Feb. 7, 2017, issue of Intellectual Property Litigation, published by the American Bar Association. The article examines the oddity of the first-to-file rule and its potential strategic implications for both patent owners and accused infringers.

Their article was quoted in two District Court opinions addressing this issue: QFO Labs, Inc. v. Parrot, Inc., No. 16-CV-3443 (JRT/HB), 2017 WL 2638389, at *3 (D. Minn. May 26, 2017) ), report and recommendation adopted, No. CV 16-3443 (JRT/HB), 2017 WL 2634155 (D. Minn. June 19, 2017); and Cirrus Design Corp. v. Cirrus Aviation Servs., LLC, No. 16-CV-3969 (JRT/LIB), 2017 WL 4863054, at *5 (D. Minn. Oct. 5, 2017), report and recommendation adopted, No. CV 16-3969 (JRT/LIB), 2017 WL 4863199 (D. Minn. Oct. 26, 2017).