Chicago IP Attorney & Lawyer : R. David Donoghue : Chicago IP Litigation Blog

The Northern District has posted the Seventh Circuit's new proposed pattern jury instructions for patent cases on its website -- click here for a copy.  The instructions include all of the recent revisions to the patent laws, including KSR and Seagate. The Seventh Circuit requested comments on the instructions be sent to:

Chief Judge Robert L. Miller, Jr.
robert_miller@innd.uscourts.gov
325 Robert A. Grant Federal Building
204 S. Main St.
South Bend, IN 46601

Comments will be accepted until April 1st.  Also, below is my list of IP jury instructions by Northern District judge, I am sure we will start to see some new ones soon in light of the turbulent 18 months patent law has had:

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Angel Sales Inc. v. Hollywood Gadgets Inc., No. 07 C 1362, Min. Order (N.D. Ill. Nov. 19, 2007) (Denlow, Mag. J.).

Judge Denlow sanctioned defendant in the amount of plaintiff's attorney's fees and costs for preparation and attendance at a settlement conference before the Court.  Defendant's counsel attended the conference, but defendant did not appear.  In a subsequent order, the Court entered a sanctions award of $1,710 based upon plaintiff's fee affidavit.

There is not much to say about this opinion, but I included it as a practice tip and a cautionary tale.  Parties often do not want to personally attend settlement conferences before judges, or they attempt to send a representative without full settlement authority.  But that is a perilous choice.  It can result in sanctions, as here, and, at the least, it usually harms the chances of settlement.  The opposing party that took the time to be at the conference is generally offended that its time was wasted.

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Easypower Corp. v. Alden Corp., __ F. Supp.2d __, 2007 WL 4191837 (N.D.Ill. Nov. 21, 2007) (Denlow, Mag. J.).

Judge Denlow denied defendant Alden Corp.’s (“Alden”) motion for reconsideration of the Court’s construction of “acute angle relative to the axis.” The Court’s construction required an angle less than 90°, and further required that if there were two or more angles, any two angles together be greater than 90°. Alden argued that the requirement regarding two or more angles was improperly read into the claim without support in the specification. But the Court held that the limitation was required based upon the clear language of the specification. Additionally, the Court noted that the parties were given ample opportunities to argue the issue, both on the papers and during the Markman hearing.

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Eazypower Corp. v. Alden Corp., __ F. Supp.2d __, 2007 WL 2601309 (N.D. Ill. Sep. 6, 2007) (Denlow, Mag. J.)

Magistrate Judge Denlow construed the claims of plaintiff’s patents regarding bits for removing damaged screws and fasteners. Of particular interest, the Court defined “in a place including the axis” as “simply what is says”:  “in a plane including the axis.” Plaintiff argued that the Court should read manufacturing tolerances into the term. But the Court held that manufacturing tolerances could not be read into claim terms citing Senned, Inc. v. Richard-Allan Med. Indus., Inc., 888 F.2d 815 (Fed. Cir. 1989).

Of course, if the specifications and prosecution histories do not limit the doctrine of equivalents, plaintiff will be able to recapture products that would meet the “in a plane including the axis” but for manufacturing tolerances.

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Crafting proposed jury instructions is one of the first steps when preparing for trial.  And one of the first steps in drafting those instructions is looking for pattern or sample instructions that the court has previously used or endorsed.  In order to help speed that process, I am adding a new Blog feature.  I have gathered the jury instructions that each of the Northern District judges identify on their respective  web pages as either form or model instructions.  Most have general civil instructions and a few have specific sample instructions for various types of IP suits.

This list should save you time when you are looking for model instructions, but I would like to make it even more useful. If you have a set of instructions used in a Northern District IP case send them to me and I will add those instructions to the list (either anonymously or with credit to the sender, at the sender's discretion). 

So, send me your jury instructions -- chicagoiplitigation@yahoo.com -- and the name of the judge that presided over the trial.  As I receive new instructions, I will add them to this post.  If I get a large response, I will do additional posts on the instructions or create a separate page where you can access the files.

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