Last month, the Federal Circuit affirmed the Trademark Trial and Appeal Board’s (TTAB) finding that Emporium Arcade Bar could not register the mark shown below without disclaiming EMPORIUM. The TTAB found that the word EMPORIUM is descriptive of “video and amusement arcade services,” “bar services,” and “bar services featuring snacks.” The TTAB further found that … Continue Reading
I attended the 14th annual Rocky Mountain IP & Technology Institute at the beginning of June. An interesting addition to this year’s Institute was the panel of PTAB personnel, including the following: Nathan Kelley, PTO Solicitor and former Acting Chief Administrative Patent Judge Patrick Bucher, Administrative Patent Judge Melissa Haapala, Administrative Patent Judge K Kalan, … Continue Reading
Trading Techs. Int’l, Inc. v. CQG, Inc., No. 05 C 4811, Slip Op. (N.D. Ill.) (Coleman, J.). Judge Coleman granted plaintiff Trading Technologies’ (“TT”) motion to terminate Markman proceedings in this patent case involving commodities trading software — click here for much more on this case in the Blog’s archives). Defendants (collectively “CQG”) sought construction … Continue Reading
On September 26, Chicago-Kent is hosting its fourth annual U.S. Supreme Court Intellectual Property Review. Seventh Circuit Judge Diane P. Wood will deliver the keynote address, titled “Is It Time to Abolish the Federal Circuit’s Exclusive Jurisdiction in Patent Cases?” It promises to be a very interesting discussion. The one-day conference will be held at … Continue Reading
Yesterday, the Federal Circuit handed down its anticipated en banc decision in Therasense, Inc. v. Becton, Dickinson & Co., increasing the standards for inequitable conduct. The 6-5 majority held that:
an omitted reference is material only if the claim or patent would not have issued, but for omission of the reference;
specific intent to deceive must be shown by clear and convincing evidence;
courts can no longer employ a "sliding scale" of intent and materiality, both must be showng by clear and convincing evidence; and
courts should apply equity to ensure that the remedy is not based upon conduct "immaterial to the issuance of the patent."
Patent Docs has an excellent explanation of the opinion and the case background. And there is plenty of commentary about the opinion (see links below). My initial reaction was that the heightened standards will not actually reduce the number of inequitable conduct claims that are filed, although it may reduce the number of inequitable conduct findings.
So, while the overall outcomes may change, the general cost and complexity of patent litigation will likely remain the same. But when I said as much on Twitter (@rdd), I got an interesting reaction from what appears to be an anonymous patent lawyer. This anonymous person suggested that the heightened standard would actually embolden inventors and patent prosecutors to omit references and hide information from the Patent Office because they are now less likely to be charged with inequitable conduct. My inclination is to dismiss this theory based upon my operating presumption that most patent prosecutors, and most inventors, are, or at least intend to, zealously advocate for their clients, or themselves, within the Patent Office's rules and the relevant ethics standards. Of course, I have seen exceptions, and they can be severe. But my experience is that those are the exceptions, not the rule. I am curious to hear what others think about this. Am I wrong?
Here is a round up of some of the blog posts about the decision:
Peter Zura's 271 Patent Blog "rejoices" that the heightened standards give prosecutors added protection;
Life Sciences Law;
Orange Book Blog;
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Trading Techs. Int'l, Inc. v. eSpeed, Inc., Case Nos. 2008-1392,-1393 & -1922, Slip Op. (Fed. Cir. Feb. 25, 2010) (Rader, J.) (Clark, J. concurring).
Writing for a panel including Judge Lourie and Eastern District of Texas District Judge Clark, Judge Rader affirmed each of the challenged decisions from Judge Moran's jury trial in this patent litigation involving futures trading software.
For much more on this case, click here to read numerous posts in the Blog's archives analyzing Judge Moran's opinions and various aspects of the jury trial. Judge Moran construed the claims of the patents-in-suit, ruled upon several summary judgment motions and presided over the jury trial. The jury found that defendants' (collectively "eSpeed") Future View software willfully infringed the patents and that the patents were valid, awarding plaintiff Trading Technologies ("TT") $3.5M. Judge Moran remitted the damages overall to approximately $2.5M.
The most interesting aspect of the decision is the discussion of the de novo review of claim construction decisions. Judge Rader spent two and a half pages explaining the fact-law dichotomy of claim construction and concluded that claim construction required resolution of evidentiary and factual issues before construing the disputed terms:
In sum, claim construction involves many technical, scientific, and timing issues that require full examination of the evidence and factual resolution of any disputes before setting the meaning of the disputed terms.
And District Judge Clark wrote a concurring opinion solely to argue against de novo review:
[de novo review] may result in the unintended consequences of discouraging settlement, encouraging appeals, and, in some cases, multiplying the proceedings.
After a de novo review of his decisions, the Court upheld Judge Moran's constructions. "Static display of prices" meant "a display of prices comprising price levels that do not change positions unless a manual re-centering command is received." And a "static condition" meant that "the price axis never changes positions unless by manual re-centering or re-positioning." While Judge Moran's constructions may have appeared narrower than the patent intended initially, they were supported by both the intrinsic and extrinsic evidence. Because eSpeed's Dual Dynamic and eSpeedmeter systems had mandatory re-centering features, they did not literally infringe.
Doctrine of Equivalents
The court upheld Judge Moran's ruling that the doctrine of equivalents did not apply to the static elements in the claim. Even if the accused products only re-centered once or twice a day, allowing that re-centering to be captured by the doctrine of equivalents would vitiate the claims. Furthermore, prosecution history estoppel also barred equivalents. The patentee differentiated his invention by explaining that its "price axis do[es] not move."
The Court upheld Judge Moran's ruling overturning the jury's willfulness finding. eSpeed's prompt redesign efforts and immediate removal of infringing products were not objectively reckless. And TT offered no evidence that eSpeed sold Future Views during the contested period.
The Court held that "single action of a user input device" was not indefinite. Judge Moran correctly construed the term as requiring "an action by a user within a short period." One of ordinary skill in the art could distinguish between single and multiple actions, even when a "single action" was a double-click.
The Court held that there was an issue of material fact regarding the priority date warranting a jury trial. The Court upheld the use of patent law experts, and found a sufficient basis for the jury's priority decision:
Considering the undisputed knowledge of those skilled in the art, disclosure of a species in this case provides sufficient written description support for a later filed claim directed to a very similar and understandable genus. Accordingly, the patents-in-suit are entitled to claim priority to the provisional application.
The Court upheld Judge Moran's ruling that failure to disclose certain software to the PTO was not inequitable conduct. The software was not material because the software's use after the priority date would not have impacted the examiner's analysis. And confidential use of the software for personal purposes was experimental.
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President Obama announced a couple of nominations this week impacting the Northern District of Illinois and the national patent bar.
First, President Obama appointed WilmerHale partner Edward DuMont to the Federal Circuit. DuMont clerked for the Seventh Circuit's Judge Posner and was an Assistant to the Solicitor General where he briefed and argued Supreme Court cases. DuMont currently has an appellate practice with a considerable focus on patent and intellectual property issues (click here for DuMont's firm bio). DuMont also spent a year working for a law firm in Bangkok, Thailand. DuMont's Supreme Court and varied appellate experience make him a very interesting choice to take Judge Michel's place on the Federal Circuit bench.
Second, President Obama has nominated the Northern District's Deputy U.S. Marshall Senior Inspector Darryl McPherson to become the Northern District's next U.S. Marshall. McPherson has served as a Deputy U.S. Marshall since 1999 and won a Special Recognition award for his service as lead Deputy Marshall for Judge Lefkow.
Both nomination must be confirmed by a vote of the U.S. Senate.
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ImageCube LLC v. The Boeing Co., No. 04 C 7587, Slip Op. ( N.D. Ill. Jan. 22, 2010) (Dow, J.).
Judge Dow entered a final judgment as to defendant Boeing in this patent case and stayed the remaining claims pending a Federal Circuit appeal of the claim construction and summary judgment of Boeing's final judgment. The parties all agreed that the Court's claim construction and partial summary judgment ended the case as to Boeing. What was left of the case was the remaining defendants' affirmative defenses and noninfringement, invalidity and unenforceability counterclaims. "Mere defenses" are not sufficient to avoid a Fed. R. Civ. P. 54(b) final judgment. Once one defense is decided for defendant, additional defenses need not necessarily be considered. And the remaining counterclaims would all benefit, should they be tried upon remand, from the Federal Circuit's claim construction decision. An immediate appeal might also hasten resolution of the entire case. Plaintiff acknowledged that it was unlikely to pursue its claims if the Federal Circuit upheld the Court's claim construction.
Finally, the Court noted that defendants, over plaintiff's objections, sought and got the schedule they wanted addressing limited issues before full discovery. Defendants cannot, therefore, "complain too loudly" about seeking more definitive resolution of limited issues before turning to the remainder of the case.
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Rosenthal Collins Group, LLC v. Trading Techs. Int'l., Inc., No. 05 C 4088, Slip Op. (N.D. Ill. Sept. 18, 2009) (Dow, J.).
Judge Dow denied the parties' cross-motions for summary judgment in this patent dispute regarding software for electronic futures trading using a static price axis.* Although the other related cases are stayed pending an appeal of the related eSpeed case to the Federal Circuit, declaratory judgment defendant Trading Technologies ("TT") sought and Judge Moran agreed to allow this case to proceed based upon TT's agreement that declaratory judgment plaintiff Rosenthal Collins Group ("RCG") infringed even under the Court's allegedly narrow construction of a "common static price axis" and "static display of prices." TT sought to broaden the constructions on appeal. The parties agreed on how the accused Onyx software operated. The price axis was generally dynamic. But if a user pointed a cursor in the window containing the axis, the axis became static until the cursor was removed or after thirty seconds, whichever came first. TT identified this as Onyx's order entry mode. And because Onyx has a static axis in order entry mode, TT argued that Onyx infringed based upon the order entry mode, even if it did not infringe in other modes. RCG argued that Onyx only had a single mode, and because the price axis was not consistently static, without manual recentering, there was no infringement. The Court held that whether Onyx operated in three modes and, therefore, infringed, or operated in a single mode and, therefore, did not was a question of fact. The case, therefore, was not appropriate for summary judgment.
The Court also stayed the case pending appeal of the eSpeed case, except for TT's motion for default and sanctions.
* Click here for much more on this case and its related cases in the Blog's archives.
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Here are a few stories you do not want to miss:
The Wisconsin Law Journal has an article based upon a Northern District of Illinois case in which a summary judgment decision hinged upon a failure to substantively answer one of the other party's Local Rule 56.1 statements of material fact. In that case, a procedural objection was made, but no substantive answer was given. So, when the objection was denied, the fact was deemed admitted. This is a point I have made often: follow Local Rule 56.1 closely and carefully.
The Blog of the Legal Times reported that in a recent interview the Federal Circuit's Chief Judge Michel suggested that the next nominees to the Federal Circuit should have the following backgrounds: a patent-experienced district judge; a trial lawyer with patent experience; or a chief corporate lawyer with patent experience.
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Brinks Hofer's Robyn Bowland is the winner of the 2008 George Hutchinson Writing Competition, Hutchinson was the first Federal Circuit Chief Clerk. The competition honors an excellent articls or paper from a law student. Bowland's article -- Distress Signals: Considering the Patentability of Signals in Light of Nuijten considered whether electromagnetic signals were patentable focusing on In re Nuijten. It is expected to be published later this month in the Federal Circuit Bar Journal. It is great to see another strong writer joining the Chicago IP bar.
* Hat tip to the Chicago Lawyer for identifying this story.
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Making good on his promise to turn his IP Colloquium into National Public Radio for IP law, Doug Lichtman's newest offering is an extended interview with Federal Circuit Chief Judge Michel. Click here to listen to Licthman's interview, you can even apply for New York or California CLE credit after listening. Here are some of Judge Michel's more interesting observations:
Petitions for rehearing are too often "shallow and weak."
Votes denying en banc rehearings are often close, making the poor petitions for rehearing especially surprising and disappointing.
Parties interested in supporting cases with amicus briefs should consider filing briefs supporting rehearing petitions. An amicus brief that was both well researched and well written could play an important role in strengthening a case's en banc potential and tipping close votes for rehearing.
In re Bilski did not answer all of the 101 questions because not all of the questions were raised in the case or ripe for consideration. It will take a series of 101 cases to flesh out the post-Bilski state of the law.
Judge Michel is hopeful that the new patent jury instructions -- click here to read the Blog's post about them -- will help bring some clarity and continuity to, among other things, damages and obviousness instructions, although at the time of the interview it appeared that he had not seen the instructions yet.
The Doctrine of Equivalents has almost "dried up."
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At the request of Federal Circuit Chief Judge Michel, an all-star panel was established to create a comprehensive set of model patent jury instructions -- click here to download them. The panel included patent litigation heavy weights like Don Dunner and federal judges -- Judges Ward (E.D. Texas) and Whyte (N.D. Cal.). The Federal Circuit has not officially endorsed the jury instructions, but they are very comprehensive and deal with just about every recent case law development. In particular, they provide an excellent glossary of patent terms for the jury (something that should be in every set of patent jury instructions, but often is not) and they provide two KSR obviousness instructions, one for if the jury is making the final determination and one if the judge does (the panel could not come to a consensus on what the correct reading of the law was).
The one instruction I had hoped to see that was missing was an instruction for awarding royalties on post-verdict sales -- see the MTTLR Blog on the issue here or read commentary on Judge Clark's plan to submit post-verdict damages to the jury here at Michael Smith's E.D. Texas blog. If anyone has seen an instruction for post-verdict damages, send it to me and I will post it for all to consider.
You can also read more about patent jury instructions in the Blog's archives -- click here for the Seventh Circuit's model patent jury instructions and here for a list of jury instructions Northern District judges have offered as precedent in IP cases.
Hat tip to Dennis Crouch for linking to the new model jury instructions here at Patently-O.
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I published an article in the most recent edition of the John Marshall Review of Intellectual Property Law surveying the application of the Twombly "plausibility" pleading standard, in place of the former any set of facts regime, to patent cases -- The Uneven Application of Twombly in Patent Cases: An Argument for Leveling the Playing Field (click here to read it). I found that district courts have largely followed the Federal Circuit's one case addressing Twombly, which unfortunately involved a pro se plaintiff, and held that Twombly did not change the pleading standards for patent plaintiffs. But despite that ruling, many district courts are requiring that patent defendants plead affirmative defenses and, in some cases, counterclaims to the higher plausibility standard. This creates a harmful dichotomy which can be remedied in two ways: 1) as some courts already do, use strict Local Patent Rules to require early disclosures of plaintiff's claims followed in short order by defendant's defenses; or 2) as at least the Western District of Wisconsin already does, require patent plaintiffs to identify the asserted claims and the accused products. Either or both level the playing field for the parties and come at little cost to plaintiffs who already have a Fed. R. Civ. P. 11 pre-suit investigation requirement.
In addition to my article, there are several excellent pieces in Volume 8, Issue 1 of Review of Intellectual Property Law, including:
European IP attorney Paul Cole provides a Eurpoean view of the KSR obviousness standard -- click here to read the article;
Timothy Trainer looks at inconsistent international application of TRIPS and discusses what can be done to better protect intellectual property worldwide -- click here to read the article.
Lawrence Ebert (of IPBiz fame) draws lessons from the patenting and licensing of the transistor -- click here to read the article;
Vangelis Economou argues that a covenant not to sue should not destroy a court's declaratory judgment jurisdiction over a patent defendant's invalidity and inequitable conduct counterclaims and that the Federal Circuit should overturn its Super Sack decision -- click here to read the article;
Nicholas Dernick looked at sovereign immunity -- click here to read the comment;
Graham Liccardi considered the Computer Fraud & Abuse Act as a vehicle for getting federal jurisdiction of trade secret disputes -- click here to read the comment; and
Mark Petrolis argued that fair use should not be an absolute defense to a moral rights violation -- click here to read the comment.
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In re Bilski, __ F.3d __ (Fed. Cir. 2008) (en banc).*
Chief Judge Michel, writing for a nine judge majority, affirmed the Board of Patent Appeals and Interferences' finding that Bilski's invention -- a commodities trading method for hedging risks -- did not meet the 35 U.S.C. § 101 patentable subject matter requirement. The Federal Circuit overturned State Street's "useful, concrete, and tangible result" test as insufficient to determine patentability. The Federal Circuit held that the Supreme Court's "machine-or-transformation" test was the only test for determining patentability:
A claimed process is surely patent-eligible under § 101 if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.
I found Judge Dyk's concurrence tracing the history of the "machine-or-transformation" test back to the Patent Act of 1793 especially interesting:
In fact, the unpatentability of processes not involving manufactures, machines, or compositions of matter has been firmly embedded in the statute since the time of the Patent Act of 1793, ch. 11, 1 Stat. 318 (1793).
As with any major appellate decision, we will need eighteen to twenty four months of district court and Federal Circuit decisions to flesh out and fully understand Bilski's implications. While we argue those cases and await the decisions, there will be plenty of law review and blog analysis. Here are some of the first (I will update with additional posts as they come):**
* 271 Patent Blog (glad to see Peter Zura back in the blogosphere);
* IP ADR Blog;
* Likelihood of Confusion;
* Patent Baristas;
* Patently-O (with Crouch's usual, in-depth analysis);
* The University of Chicago Law Faculty Blog (Randy Picker has an exceptionally detailed take on the opinion); and
* WSJ Law Blog (saying experts are torn as to whether Bilski will make it to the Supreme Court).
* Click here for the opinion.
** I have updated the list of Bilski blog posts with some new ones.
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Baxter Int'l, Inc. v. Fresenius Med. Care Holdings, Inc., No. 08 C 2389, Slip Op. (N.D. Ill. Sep. 25, 2008) (Ashman, Mag. J.)
Judge Ashman granted defendants Fresenius's motion for a stay pending the Federal Circuit appeal of an earlier case between the parties involving related, but not the same, hemodialysis patents. But the Court denied a stay pending an ex parte reexam of plaintiff's related patents (the same as in the Federal Circuit appeal) and an inter partes reexam of the patents in suit. The reexam of the related patents had only uncertain and limited benefits to the Northern District. Because the patents under reexam were not the patents in suit, there could be no issue preclusion. And any potential streamlining of the case the reexam might achieve was outweighed by the reexam's potential for extreme delay.
The reexam of the patents in suit was filed, as was the stay motion, early in the case. And the inter partes nature of the proceeding guaranteed that it would streamline the case. But the potential benefits were outweighed by the likelihood for extreme delay. The court cited statistics showing that the average inter partes reexam lasts 6.5 years and that they can last as long as ten years. Finally, the Court noted that in the ten year history of inter partes reexam, no case had progressed through every possible level of examination and appeal.
Finally, the Court held that a stay pending the Federal Circuit's decision on appeal would benefit the case. The Federal Circuit was reviewing a claim term used in the patents in suit. And the Federal Circuit was reviewing obviousness and validity, both issues that could shape this case. And the Federal Circuit decision was expected within months, in early 2009. So, the delay did not outweigh the benefits.
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Baldwin Graphic Sys., Inc. v. Siebert, Inc., No. 03 C 7718, 2008 WL 4083145 (N.D. Ill. Aug. 27, 2008) (Moran, Sen. J.)*
Judge Moran granted defendant's summary judgment of invalidity as to plaintiff's patented technology for cleaning printing press components. The Court previously granted defendants summary judgment of noninfringement on a reissued patent and the patent at issue in this opinion, but the Federal Circuit reversed as to the patent at issue after revising the Court's claim construction - click here for more on this case in the Blog's archives.
After holding that each element of the claims were taught by various pieces of prior art, the Court considered whether the art could be combined pursuant to the Supreme Court's KSR standard. The Court held that the creation of strict new industry standards and a finite number of solutions that met the standards created jurisdiction for combining the prior art references:
The introduction of strict regulations regarding the use of high VOC solvents was an outside impetus to begin using low VOC solvents to clean presses. By plaintiff's own admission, the existing spray bar/dry roll systems worked poorly with low VOC solvents. Therefore, a problem needed to be solved. The mechanics of printing press design led to a finite number of solutions. The pieces for the ultimately embraced solution were all present in the prior art, and it was only a matter of time before they were put together in the manner described in the asserted claims of the '976 patent. We find this to be true, particularly in light of KSR's instruction that "Common sense teaches ... that familiar items may have obvious uses beyond their primary purposes, and in many cases a person or ordinary skill will be able to fit the teachings of multiple patents together like pieces of a puzzle." KSR, 127 S.Ct. at 1742. See also, Muniauction, Inc. v. Thomson Corp., ___ F.3d ___, 2008 WL 2717689, at *6-*10 (Fed. Cir. July 14, 2008); Leapfrog Enterprises, Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1160-63 (Fed. Cir. 2007).
The Court also found the patent invalid because "reduced air content" was indefinite. The patent did not teach how or when to measure the air content reduction. Because three different experts could start the calculation from three different baselines and get three different, but equally correct results, the term was indefinite.
* Click here for more on this case in the Blog's archives..
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John Marshall's Summer 2008 edition of its Review of Intellectual Property Law is on bookshelves everywhere, plus it is online (click here for the table of contents of the current edition with links to pdfs of each article). Some of the highlights in:
The text of Chief Judge Michel's address to the Federal Circuit Judicial Conference in which he discussed the state of the Circuit and asked Congress to add a fourth law clerk for each appellate judge to speed the Federal Circuit's output;
An article by R. Mark Halligan arguing for the addition of a trade secret misappropriation cause of action to be added to the Economic Espionage Act of 1996; and
Hal Wegner's discussion of the impact of the Supreme Court's patent exhaustion decision in Quanta v. LG; and
Daniel Sullivan's student arguing that an Article I patent tribunal should be created and that patents should know longer be subject to trial by jury.
Whether you agree or disagree with the authors, this edition has some provocative arguments.
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On Tuesday, September 16 the John Marshall Law School is putting on an impressive conference looking at the legacy of the Federal Circuit's Chief Judge Markey. For those that never had the opportunity to know or experience Judge Markey, here is part of Judge Michel's tribute to Judge Markey in the Legal Times after he passed in 2006:
Leadership for Howard Markey began with setting a vigorous example. He simply heard more appeals, wrote more opinions, gave more speeches, drafted more articles, taught more law school classes, and judged more moot courts than any other member of the court. And he did so despite all his administrative duties. Meanwhile, he chaired both the board of directors of the American Inns of Court and the Committee on Codes of Conduct of the Judicial Conference of the United States. He traveled constantly and sat with every regional circuit court, the first and only judge to do so.
Despite a life in overdrive, he was the happiest and funniest man I ever met, routinely reeling off five or six successive jokes without pausing to recollect, or even to breathe. Family members report that he had a perfect memory, an asset especially helpful to a tireless storyteller, which he was.
(Click here for a link to the article and more on Judge Markey). If Judge Michel's description of Markey is not enough to get you to the event, Supreme Court Justice Antonin Scalia will be giving the keynote address. I have had the privilege of hearing Justice Scalia speak a couple of times. He is an excellent speaker and should not be missed.
Click here for John Marshall's conference brochure and here for Patent Docs' description of the event, they are a seminar sponsor. The registration deadline is this Friday, September 12. I hope to see you there.
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Last week's Olympic edition Blawg Review focused on the medals. Building on that, this week I discuss the elements of a world record swim. If you were watching last week, instead of blogging, you saw 20 of them in the Olympic pool; seven by Mr. Phelps.
Nothing is more critical than preparation. A big part of preparation is tightening your stroke and cutting out unnecessary motion. Reese Morrison, at the Law Department Management blog, discusses blunt suggestions for trimming legal bills.
Endless hours in the pool alone are not enough, you need a good coach. Business development coach Cordell Parvin provides an excellent three part series at his Law Consulting Blog - one, two, and three - on persistence, an important element of any Olympic training program. In an Olympic caliber display of persistence, Drug & Device Law had an exhaustive post discussing and classifying each medical device preemption case since the landmark Supreme Court decision in Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008).
You also need a support network to help you get through all of the pool time. Bruce Allen, at Marketing Catalyst, teaches us how to avoid the cocktail conversation you cannot escape from at a networking event. At Copyblogger, John Morrow explains that content is no longer king in the blogosphere, you need friends. And he teaches you how to get them. At BlawgIT, Brett Trout - who is a fighter, not a swimmer - has an interesting post about how to work together as a community to thwart webjackings (the hijacking of a website). And Mediation Channel's Diane Levin discusses the social side of blogging, and reading blogs.
Of course, if you do not have time to practice you will never set the record. So, you need a job, or at least some cash. On that note, Harmful Error posts the great news that loan forgiveness programs were expanded this week for legal aid lawyers, state prosecutors and public defenders.
The clothes make the man (or the woman). This year the go-to duds were Speedo's LZR suits. Patent Librarian Michael White tells us that, no surprise, Speedo patented the LZR. IPKat expands on swimming patents, providing a broader view of Olympics-related patents.
As a guy who swam for a lot of years and practiced hard throughout, I can tell you not everyone has what it takes to set world records. The closest I came was getting beat by an Olympian and world record holder. Of course, you might be less impressed by my loss if you knew that at the time his Olympic medals were four or five decades old, and I was 19. At Idealawg, Stephanie West Allen discusses the traits that make entrepreneurs entrepreneurial.
One of the big stories on Phelps this week was how he thinks of nothing but not losing during a race. At Litigation & Trial, Maxwell Kennerly tells us that you have to know when you are sweating the details more than your client would want by over emphasizing proof-reading. Of course, even Kennerly agrees that some details matter.
Knowing the Rules
You have to know the rules. Turn wrong or break the rules for your stroke and beating a record by ten seconds will not matter. At the Legal Juice, John Mesirow reports that kids at the Lake County Florida library are allowed to rent R-rated movies because they believe it is an unconstitutional delegation of authority for the Motion Picture Association of America's guidelines for determining obscenity. I am sure kids from all over that area are flocking to the Lake County library because the rules are on their side, at least for now.
Filewrapper reports on a Federal Circuit decision holding that copyright infringement, and not just breach of contract, when the terms of an open source license governing the copyrighted material are breached. For more on this major decision in the IP world, check out: BLT; Law Pundit; and Patently-O.
Seattle Trademark Lawyer Mike Graham shows the consequences of not following the rules using two Western District of Washington opinions.
Ethan Lieb, guest blogging at Freakonomics, argues that we need to change the rules requiring unanimous juries. And the WSJ Law Blog discusses a judge and a juror who clashed over jury nullification.
A bad start is hard to recover from, especially when you are chasing the fastest time ever. Evan Schaeffer shows how to open well at trial at the Illinois Trial Practice Weblog, and he links to Trial Theatre's opening statement quiz.
Coming off the wall in a turn is the fastest a swimmer goes during a race. So, you need good turns. IntLawGrrls discuss how to turn around the conflict between Georgia and Russia (sorry the turns section was tough).
Legal Literacy discusses Whole Foods' turned around (or recalled) beef and looks behind the scenes at how it happened and Whole Foods' impressively quick response.
Do you do an extra stroke or do you glide in hard? Always a tough question, but the .01 seconds the decision costs you can mean the race and the record.
At his E.D. Texas Weblog, Michael Smith reports that while the E.D. Texas started out as a rocket docket, particularly for patents, it has now slowed down and let many other districts catch it with a time to trial of 24 - 30 months.
The Law and Magic Blog reminds us that we cannot always win, and that trying to rig the system to guarantee wins - he is talking about the stock market, but it holds true for the pool - is dangerous work.
At the IP ADR Blog, Victoria Pynchon praises several Perkins Coie attorneys who went the distance for their pro bono clients at Gitmo and earned the clients' respect for providing them an able defense.
** Images provided via a Creative Commons license by A. Dawson or Andre from Flicker. **
Next week's Blawg Review will be at fellow LexBlog site, the Texas Appellate Law Blog.
Blawg Review has information about next week's host, and instructions on how to get your blawg posts reviewed in upcoming issues.
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Managing Intellectual Property published its annual list of the fifty most powerful people in the international IP community (hat tip to Patent Docs for pointing it out). Click here for the list (subscription or two week free trial sign up required). There were two honorees with Chicago connections:
Rhonda Steele (#8) -- Steele is both the president of INTA and Asia-Pacific marketing properties manager for Mars. While Steele does not necessarily work in Chicago or on Chicago-specific IP, Mars makes Fun Size versions of its 3 Musketeers, Snickers and Milky Way candy bars in Chicago.
Jim Malackowski (#34) -- Malackowski is a founder of Chicago-based Ocean Tomo, as well as its president and CEO. Among other things, Ocean Tomo is well known for its patent auctions (at leas the last several of which have each totalled more than $10M in sales), IP valuation services and damages expert work.
These IP luminaries share the honor with Second Life avatars (#1), the PTO's Director John Dudas (#4), the Federal Circuit's Judge Michel (#9), Harry Potter (#14),and blogger and Google copyright counsel William Patry, of the Patry Copyright Blog.
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Se-Kure Controls, Inc. v. Diam USA, Inc., No. 06 C 4857, Slip Op. (N.D. Ill. Jun. 19, 2008) (Guzman J.)
Judge Guzman construed the disputed terms in plaintiff's patent to a retail store security alarm system for portable devices. Of particular note, the Court held that a "retracting mechanism" was a means plus function element. While "mechanism" does not create a perception of means plus function language, the Court noted Federal Circuit precedent that "mechanism" generally lacked sufficient structure. And that held true in this case, as evidence by the fact that both parties identified structure from the specification that allegedly defined the claimed mechanisms.
The Court also provided a very useful summary of its constructions at the end of the opinion. The claim construction summary is an excellent writing device, like an executive summary, that substantially increases the ease of use of the opinion. Hopefully more courts will adopt Judge Guzman's structure.
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Quanta Computer, Inc. v. LG Elecs., No. 06-937, 553 U.S. ___ (2008).
The Supreme Court concluded its latest review of the patent laws Monday when Justice Thomas delivered the Court's succinct, unanimous decision in Quanta v. LG. Client obligations this week prevent me from providing a detailed analysis today. But, no surprise, there is plenty of commentary out there already. For more about decision, check out:
* 271 Patent Blog
* Agricultural Law
* IP Thinktank
* Patent Docs
* WSJ Law Blog
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Trading Techs. Int'l, Inc. v. eSpeed, Inc., No. 2008-1392 & 1393 (Fed. Cir.).*
As Judge Moran predicted, the parties have appealed this case to the Federal Circuit.* The parties' appeals were consolidated, leaving a single appeal with a substantial number of issues. The great, new Patent Appeal Tracer* reported that plaintiff Trading Technologies ("TT") is appealing at least the following decisions (click here to read Tracer's post on the cross-appeals):
Claim constructions, specifically constructions of "static price axis" and "order entry region" (click here and here and here for the Blog's posts regarding claim construction opinions);
Summary judgment of noninfringement of most of defendant eSpeed's software packages, including the following titles: Dual Dynamic, eSpeedometer, and modified eSpeedometer programs (click here for the Blog's post regarding this opinion);
Partial summary judgment for TT regarding prior use (click here for the Blog's post regarding this opinion); and
Judgment as a matter of law overturning the jury's willfulness finding (click here for the Blog's post regarding this opinion).
And eSpeed is appealing, at least, the following decisions:
The permanent injunction regarding certain of eSpeed's software packages (click here for the Blog's post regarding the Court's permanent injunction).
* Thanks to Patent Tracer for linking to the Blog's TT v. eSpeed coverage. Click here to read much more about this case in the Blog's archives.
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