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

The Seventh Circuit Electronic Discovery Pilot Program is sponsoring a free e-discovery webinar on April 6, 2011 from noon until 1:30 pm CDT.  This is the next in a series of e-discovery seminars sponsored by the local federal courts which have been excellent so far.  Participation is limited to 1,500.  So, sign up early -- click here to register.  Attendance for the past events has been impressive.  1.5 hours of MCLE credit have been applied for in Illinois, Indiana and Wisconsin.

Here are the details of the webinar from the Northern District's inviation:

What Everyone Should Know About the Mechanics of E-Discovery

April 6, 2011 - Noon - 1:30 p.m. (CDT)

Understanding the mechanics of electronic discovery is essential to your effectiveness in litigation and to fulfill your responsibility to your clients. The Seventh Circuit Electronic Discovery Pilot Program, together with Merrill Corporation, has developed a program designed to assist you in mastering the e-discovery challenges of today’s litigation and to help you manage the preservation, retrieval and production of ESI through the e-discovery process. You will gain information including:

• A basic understanding of the terminology unique to the realm of e-discovery.
   
• The meaning of preservation and how to achieve this crucial obligation in an evolving technological landscape.
   
• How to assess and manage the challenges of an e-discovery project.
   
• A foundational understanding to help you identify potential e-discovery pitfalls and potential problems.

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The Seventh Circuit's Electronic Discovery Committee is offering what appears to be an excellent CLE program, with one hour of Illinois credit, discussing when and how lawyers should communicate with their clients about e-discovery issues.  Click here to register for the April 28, 2010 noon CT webinar.  Here is the Committee's description of the program:

“You and Your Clients: Communicating About E-Discovery, How to Talk to Your Clients about E-Discovery and the Application of the Seventh Circuit E-Discovery Principles” should not be missed. It will provide an in-depth discussion regarding the following topics:

• When should communications regarding ESI begin with your client;
  
• What are the categories of discoverable ESI you need to discuss;
  
• How do you help your client assess where discoverable ESI might be stored;
  
• What steps should be taken to preserve relevant ESI;          
  
• When (and if) backup tapes should be considered an ESI source that needs to be preserved/disclosed/produced;
  
• How vendors can be used effectively in the collection/processing/production of ESI;
  
• Practical approaches for the production of ESI; and
  
• When to use and how to select an electronic discovery liaison.

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Wednesday, February 17, 2010 at noon central, Law.com is hosting an in-depth webinar discussion of the Seventh Circuit's new Principles Relating to the Discovery of Electronically Stored Information – click here for registration information. The Principles are designed to streamline discovery and resolve e-discovery disputes by, among other things, incentivizing early and informal information exchange on common issues. The Principles also identify formats of e-discovery that are generally not required to be preserved in order to reduce fights and costs. For more on the Principles, click here.  In October 2009, the Seventh Circuit initiated Phase One of its E-Discovery Pilot Program across the Seventh Circuit's district courts, with a special emphasis on the Northern District of Illinois. In Phase One, the Principles are being applied to 80 selected cases during Phase One. 

The panelists for the webinar include:

• Chief Judge Holderman;
  
• Magistrate Judge Nolan;
  
• Thomas Lidbury, Mayer Brown; and
  
• Alexandra Buck, Senior Counsel and Director of E-Discovery and Records Management at Abbott Laboratories.   

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Gabbanelli Accordions & Imports, L.L.C. v. Italo-Am. Accordion Mfg. Co., No. 02 C 4048, Slip. Op. (N.D. Ill. Sept. 21, 2009) (Zagel, J.).

Judge Zagel entered judgment on behalf of plaintiffs in the amount of $151,200 in lost profits after the Seventh Circuit affirmed the Court's judgment.* The Court also held defendants jointly and severally liable for $147,576.12 in plaintiff's attorneys' fees.

* Click here for more on this case in the Blog's archives.

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Schrock v. Learning Curve Int’l, No. 08-1296, 2009 WL 3644331(7th Cir. Nov. 5, 2009).

The Seventh Circuit reversed and remanded Judge Shadur's decision in this copyright case.*  The Court held that plaintiff's photographs of defendant's Thomas the Tank Engine trains were derivative works, and that absent a contractual provision to the contrary, plaintiff had a copyright in the derivative work.  Because plaintiff had permission to create the derivate works, plaintiff had a copyright in his derivative works.  And the Court could not decide whether the agreements prevented plaintiff from getting a copyright in the derivative work because the agreements were not part of the appellate record.  Additionally, the Court pointed out that the requirement that a derivative work be "substantially different" from the original did not create a heightened originality standard for derivative works.  The Court noted that plaintiff's photographs of defendant's Thomas the Tank engines had sufficient originality.

*  Click here for more about this case in the Blog's archives.

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Click here for the Seventh Circuit's new proposed pattern trademark jury instructions.*  The committee that prepared the instructions included Northern District of Illinois Judges Kendall and Kennelly, as well as a broad spectrum of attorneys from academic, government and private practice.

The pattern instructions are impressive for their thoroughness. They are also very well cited, making them an excellent primer on Seventh Circuit trademark law. Of particular note, the instructions do not include a dilution instruction because since Congress's 2006 revision of the dilution laws, there has not been sufficient appellate interpretation. 

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The Seventh Circuit's Judge Posner has weighed in on the newspaper crisis at his Becker-Posner Blog suggesting that a fix to the news revenue issue might be to change copyright laws to prevent linking to or summarizing news content (click here to read the post):

Expanding copyright law to bar online access to copyrighted materials without the copyright holder's consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder's consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.

I see the problem and the danger to society in losing newspapers and their reporters, but it seems unworkable to prevent linking.  Perhaps a system could be implemented requiring sites that link to a news story or to registered and copyrighted material to pay a small fee for each click through from their site.  It could be similar to and even administered by the Copyright Clearance Center which currently offers licenses that grant rights to incidental copying of the copyrighted content of member organizations.

Additionally, preventing summarizing of factual news stories would be exceptionally difficult to implement.  But the newspapers can prevent direct copying of the text of articles from their sites and can always require subscriptions or passwords to get to their content.

But while I am not sure that these suggestions are workable, there is little doubt that newspapers in particular need new avenues to monetize their content in order to maintain economically viable.  And as someone who has three papers delivered to his door daily, I fully support protecting the print news media.

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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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Anne Reed has an excellent post at her Deliberations blog about improving the voir dire system based upon Judge Mize's and Center for Jury Studies director Paula Hannaford-Agor's new paper, Building a Better Voir Dire  -- click here to read the post and for a link to a pdf of the article, which is also worth the read.  Reed's post and the article fit well with my recent series of posts on the Seventh Circuit's American Jury Project report -- to read those posts and for a copy of the report, click here (juror questions); here (preliminary jury instructions); here (12 person juries); here (interim statements by counsel)and here (Phase I principles). 

Reed nails a huge problem with improving voir dire specifically or the trial process generally -- judges and lawyers have different interests.  Judges who do lots of trials while facing bulging dockets and populations with little interest in appearing for jury duty often want trials over quickly and efficiently using the smallest jury pool possible.  Lawyers want to know as much as possible about as large a pool of jurors as possible.  Of course, the more in-depth the voir dire process, the more time it takes.  And the process of testing new ideas and improving upon voir dire, or any part of the trial process, also takes time up front, even if it saves time in the long term.  But Reed, Mize and Hannaford-Agor identify two resources that help limit the upfront costs for judges -- the American Jury Project and the NCSC's State-of-the-States Survey.  Both are incredible resources for judges that want to try new approaches to better serve all trial stakeholders.

Most of all though, it is exhilirating to see important groups like the NCSC and the Seventh Circuit massing their resources to evaluate and improve the trial process.  I look forward to covering more efforts like these and to continuing the discussion about how to best try cases in our courts.

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I previously described the high-level findings of the Seventh Circuit’s American Jury Project – click here for that post, including links to PDFs of the report and related documents. Having discussed the four Principles studied in Phase Two,* this post looks at the additional three Principles considered only during Phase One: juror questionnaires, deliberation guidance, and trial limits.

The Phase One study showed strong value in having potential jurors answer questionnaires prepared by the court and counsel before voir dire. It streamlined the voir dire process, preserving judicial resources and benefiting jurors who are not comfortable with public speaking. The Commission recommended using questionnaires. For much more on questionnaires and a great library of them, check out Anne Reed’s Deliberations blog – click here for Reed’s questionnaire library.

The Phase One analysis of adding deliberation guidance instructions was inconclusive. Judges in sixteen trials used the following instructions regarding picking a foreperson and deliberating:

A.                 Jury Instruction on the Role of the Presiding Juror:

You are free to deliberate in any way you decide or to select whomever you like as a foreperson. However, I am going to provide some general suggestions on the process to help you get started. When thinking about who should be foreperson, you may want to consider the role that the foreperson usually plays. The foreperson serving as the chairperson during the deliberations should ensure a complete discussion by all jurors who desire to speak before any vote. Each juror should have an opportunity to be heard on every issue and should be encouraged to participate. The foreperson should help facilitate the discussion and make sure everyone has a chance to say what they want to say.

 

B.                 Jury Instruction as to Suggestions for Conducting the Deliberations:

In order to help you determine the facts, you may want to consider discussing one claim at a time, and use my instructions to the jury as a guide to determine whether there is sufficient evidence to prove all the necessary legal elements for each claim or defense. I also suggest that any public votes on a verdict be delayed under everyone can have a chance to say what they think without worrying what others on the panel might think of their opinion. I also suggest that separate tasks (such as any note taking, time keeping, and recording votes) be assigned to more than one person to help break up the workload during your deliberations. I encourage you at all times to keep an open mind if you ever disagree or come to different conclusions on facts from any of your fellow jurors. Thinking about the other juror’s point of view may help you understand their position better or give you a better way to explain why you think your position is correct.

A strong majority of jurors believed they had to follow the judge’s instructions above. Guidelines that jurors believe to be rules are not good for the process, especially if an appellate court later decides the guidelines were somehow incorrect.

The Commission also suggested that judges explain the trial schedule to juries – whether they would be required to deliberate on weekends or late in the evening, etc. Generally, providing juries information helps the process and increases juror satisfaction. Having said that, my experience has been that, without any guidance, juries usually adopt reasonable schedules, starting at reasonable times, ending for the day between 5 or 6, and deliberating late or over a weekend when they feel close to a decision.

            Finally, the Commission studied trial time limits in Phase One. Generally, judges were disinclined to set hard limits on trial time. My experience, however, is that most judges informally limit trial time and that those informal limits are fairly effective. Counsel do not want to upset judges by going over the limits, and jurors still get increased knowledge of their jury commitment without the extra cost of keeping exact time of trial for each side.

* For more on the Phase Two principles, click here (juror questions); here (preliminary jury instructions); here (12 person juries); and here (interim statements by counsel).

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I previously described the high-level findings of the Seventh Circuit’s American Jury Project – click here for that post, including links to PDFs of the report and related documents. Having discussed the Commission’s findings, I am now looking at findings for the specific Principles studied. This post focuses on twelve person juries.

In seventeen trials, counsel were allowed to make interim statements before or after witness testimony and at the end or beginning of each week, as follows:

• Counsel could make interim statements before or after their questioning of a witness, on either direct or cross;
   
• The statements were given outside the presence of fact witnesses;
   
• Counsel could object having interim statements just as in an opening or closing, but could not respond to them, to avoid excessive contentiousness;Advance notice of interim statements was not required;
   
• Counsel’s statements for a trial were time-limited at the start of trial; and
   
• Counsel were given ten minutes at the end and beginning of each trial week to summarize old testimony or preview the coming testimony.

83% of judges using interim statements would use them again and believed they assisted juror understanding. No judge reported abuse of interim statements. Most judges that did not try interim statements believed they would decrease trial efficiency.

Both trial counsel and jurors agreed with the judges that interim statements improved trials. 90% of jurors thought the interim statements were helpful for introducing or summarizing evidence.

The Commission suggests courts use interim statements for trials lasting longer than one week. The longer a trial runs, interim statements become both more helpful and more critical to juror understanding.

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I previously described the high-level findings of the Seventh Circuit’s American Jury Project – click here for that post, including links to PDFs of the report and related documents. Having discussed the Commission’s findings, I am now looking at findings for the specific Principles studied. This post focuses on twelve person juries – click here for a previous post regarding juror questions and click here for a previous post regarding preliminary jury instructions.

Twelve person juries had the least conclusive results of the four Phase Two Principles. Mathematical modeling and other data suggested that twelve person juries would increase jury diversity and, therefore, presumably fairness. Fifty trials used twelve person juries. 50% of the judges in the trials believed the larger panels resulted in increased diversity, but only 39% of the trial attorneys agreed. But relatively few judges (25%) and trial attorneys (25%) thought the larger juries increased the fairness of the trial. Judges (78%) and trial attorneys (64%) largely agreed that the larger juries did not decrease trial efficiency. Finally, 93% of jurors and 77% of attorneys agreed that “the right number” of jurors were empanelled expanded in their cases.

The actual fairness of trials may not have been improved by larger juries. But the increased diversity of the twelve person jurors should at least increase the perception of fairness. Much of the power of our judicial system rests in a shared public perception of its fairness. The perception of fairness, therefore, is critical to the system. As a result, I agree with the Commission’s finding that, despite the inconclusive findings, twelve person juries warrant at least further study, if not widespread adoption.

Finally, one interesting procedural note: courts across the country face consistent problems filling jury pools. So, increasing jury sizes will strain an already strapped system. This is partially resolved by the Commission’s decision not to increase each side’s three peremptory challenges along with the increased jury sizes. Not increasing peremptory challenges reduces the increased strain on the jury pool and helps increase diversity, but it also limits counsels’ ability to pick the best possible jury. There may not be a perfect solution to this problem, but it is, at a minimum, an interesting tension that warrants additional study.

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I previously described the high-level findings of the Seventh Circuit’s American Jury Project – click here for that post, including links to PDFs of the report and related documents. Having discussed the Commission’s findings, I am now looking at findings for the specific Principles studied  -- click here for the last post discussing the use of juror questions.

The second Phase Two Principle tested was substantive preliminary jury instructions. Courts were instructed to follow traditional jury instruction procedures to develop initial substantive jury instructions explaining:

• The jury’s rule;
   
• Trial procedures, including taking notes and juror questions – click here for the Blog’s post about jury questions;
   
• The native and evaluation of evidence;
   
• Issues to be addressed;
   
• The elements of the claims; and
   
• Jurors’ obligations during trial.

Courts were also encouraged to repeat instructions throughout trials as necessary. When I clerked for District Judge Gordon Quest (W.D. Mich.), I saw numerous trials, in a very short period, all of which used preliminary instructions. It is hard to believe a trial without preliminary instructions could be as effective as one with them. Most jurors come to a trial without significant trial experience beyond Law & Order or CSI – both great series, but lousy juror education. Going through a trial without instructions until the end is like asking people to play football, without telling the rules of the game until the fourth quarter. The results of the study confirm my belief. Thirty four trials used preliminary instructions. Judges from 87% of the trials reported that the preliminary instructions approved juror understanding. 80% of the judges said the instructions increased the judge’s satisfaction with the trials. And judges believed that the instructions increased fairness in 76% of the trials. No judge believed that the instructions harmed the trial process. Chief Judge Holderman believed the preliminary instruction were valuable:

I have found that preliminary instructions helped to orient the jurors to the case and allowed the jurors to start making connections between the evidence and the disputed issues in the case more quickly.

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I previously described the high-level findings of the Seventh Circuit’s American Jury Project – click here for that post, including links to PDFs of the report and related documents. Having discussed the Commission’s findings, I am now looking at findings for the specific Principles studied.

First up is allowing jurors to submit written questions for witnesses. As I discussed previously, jurors and judges both overwhelmingly believed juror questions benefited both juries and trials. It is hard to imagine that juror questions would not benefit trials and justice. If you ever have the opportunity for a post-trial discussion with a jury, a common theme is what the jury did not understand about the trial and the questions jurors wanted the lawyers to ask. While it is a little frightening for trial lawyers to give up some control of the trial process, overall both sides are better off with the jurors’ questions answered, removing a huge distraction for jurors. And you can learn much about how a jury is leaning or what you need to do in your case by listening to jurors’ questions.

Of course, as with most things during a trial, the details are very important. The Commission used the following initial jury instruction explaining that written questions could be submitted, that they would be asked only if allowed by the Fed. R. Evid., that they might be revised to comport with the Rules, and that questions may or may not be asked of all witnesses:

In this trial, we are using a procedure that you may not have seen before. As members of the jury, you will be permitted to submit questions for a witness after the lawyers have finished questioning the witness. Here is how the procedure works: After each witness has testified and the lawyers have asked all of their questions, I will turn to the jury to see if anyone has any additional questions. If you have a question, you should write it down and give it to the court staff.

You may submit a question for a witness to clarity or help you understand the evidence. Our experience with juror questions indicates that a juror will rarely have more than a few questions for one witness, and there may be no questions for some witnesses.

If you submit a question, the court staff will provide it to me and I will share your questions with the lawyers in the case. If your question is permitted under the rules of evidence, I will read your question tot the witness so that the witness may answer it. In some instances, I may modify the form of phrasing of a question so that it is proper under the rules of evidence. On other occasions, I may not allow the witness to answer a question, either because the question cannot be asked under the law, or because another witness is in a better position to answer the question. Of course, if I cannot allow the witness to answer a question, you should not draw any conclusions from that fact, or speculate on what the answer might be.

Here are several important things to keep in mind about your questions for the witnesses.

First, all questions mush be submitted in writing. Please do not ask questions orally of any witness.

Second, witnesses may not be re-called to the witness stand for additional juror questions, so if you have a question for a particular witness, you should submit it at the end of that witness’s testimony.

Finally, as jurors you should remain neutral and open throughout the trial. As a result, you should always phrase any questions in a neutral way that does not express an opinion abut the case or a witness. Remember that at the end of the trial, you will be deciding the case. For that reason, you must keep an open mind until you have hard all of the evidence and the closing arguments of counsel, and I have given you final instructions on the law.

The following instruction was used at the end of trials:

During the trial, written questions by some members of the jury have been submitted to be asked of certain witnesses. Testimony answering a question submitted by a juror should be considered in the same manner as any other evidence in the case. If you submitted a question that was not asked, that is because I determined that under the rules of evidence the answer would not be admissible, just as when I sustained any objection to questions posed by counsel. You should draw no conclusion or inference from my ruling on any question, and you should not speculate about the possible answer to any question that was not asked or to which I sustained an objection.

Jurors were allowed to ask questions in 38 trials, and asked questions in 31 of those. 56% of jurors asked at least one question. Judges (63%), litigators (60%), and juries (87%) generally agreed that jurors asked an appropriate number of questions. Most jurors said that their questions were for the purpose of:

• Clarifying information;
   
• Getting additional information;
   
• Linking evidence; or
   
• Covering something lawyers missed.

Judges (77%) and litigators (65%) largely agreed that juror questions increased juror understanding and that they did not harm trial efficiency – judges (75%) and litigators (66%). Even the losing litigators largely believed juror questions enhanced juror understanding. Based upon this data, it appears that juror questions should be widely adopted. 

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The Seventh Circuit instituted a Commission to study the implementation of the ABA Jury Project.  The Northern District was heavily represented on the Commission.  The following Northern District Judges were members of the Commission:  Bucklo, Brown, Coar, Darrah, Denlow, Der-Yeghiayan, Gottschall, Holderman, Kennelly, Lefkow, Moran, Schenkier, St. Eve, and Zagel.  The Commission recently published its report -- click here to read it.  The report describes a two phase analysis.  In the first phase, district judges tested the following seven ABA Principles:

1.       Twelve-Person Juries;

2.       Jury Selection Questionnaires;

3.       Preliminary Substantive Jury Instructions;

4.       Trial Time Limits;

5.       Juror Questions;

6.       Interim Trial Statements by Counsel; and

7.       Enhanced Jury Deliberations.

Other Principles, such as juror notebooks and allowing jurors to take notes, were already in such widespread use that they were not tested.  Click here for the Phase One Project manual detailing the principles, the rationales and authority behind them, and suggested procedures.  Phase One resulted in questionnaires from 22 participating federal trial judges, 74 participating attorneys and 303 jurors from 38 trials that used one or more of the seven Principles.  Based upon the analysis of Phase One results and questionnaires, the Commission focused Phase Two on the following four Principles:

1.       Juror Questions;

2.       Interim Trial Statements by Counsel;

3.       Twelve-Person Juries; and

4.       Preliminary Substantive Jury Instructions.

These Principles were chosen because of Phase One popularity (78% of jurors reported that being able to ask questions increased their satisfaction with the process) and because of a desire to study the Principles more.  Click here for the Phase Two manual.

In Phase Two, 108 jurors from 12 trials employing one or more of the Phase Two Principles filled out questionnaires.  In addition, 12 attorneys and 4 district judges that participated also filled out questionnaires.  The results are interesting, but more importantly create the opportunity to powerfully impact the trial system across the Seventh Circuit in ways that benefit all of the stakeholders in the trial process -- the litigants, the jurors, the judge and the judge's chambers, and the litigators.

All four of the Phase Two Principles showed significant benefits to the trial process.  83% of jurors reported an increased understanding of the facts when allowed to ask written questions through a judge -- the questions were reworded to meet evidentiary rules.  And 75% of judges and 65% of attorneys thought the questions benefited jurors.  Similarly, preliminary substantive jury instructions were found to improve trials by jurors (80%), judges (85%) and attorneys (70%).  And the same was true for interim statements to the jury -- jurors (80%) and judges (85%).  Finally, twelve-person juries were found not to harm efficiency, while increasing juror diversity.

Each of the four Phase Two Principles, as well as several of the additional three Phase One Principles deserve more attention and analysis.  So, over the next several weeks I will provide follow up posts discussing the findings of those Principles in greater detail.  I will start with the idea of juror questions, which I find particularly important, later this week or early next.

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The Seventh Circuit's Judge Posner is scheduled to begin a bench trial this morning on the issue of inequitable conduct in New Medium Technologies LLC v. Barco NV, No. 05 C 5620.  The trial is scheduled to last today and tomorrow, but could go as long as Wednesday.  I represented a party that was in the case, but settled and was dismissed from the case last year.  As a result, I have not covered any opinions from the case, previously before Judge St. Eve.  But I am going to observe some of the trial, and I may blog about the trial if I find some interesting things to say that relate more to the trial techniques of counsel or Judge Posner's courtroom than the facts of the case.

But if you are interested in watching Judge Posner hear a patent case or what I expect to be some excellent advocacy from the Niro firm, for plaintiffs, and Baker & McKenzie, for defendants, the bench trial is being heard in Judge St. Eve's courtroom.

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Miyano Machinery USA, Inc. v. MiyanoHitec Machinery, Inc., No. 08 C 526, 2008 WL 236610 (N.D. Ill. Jun. 6, 2008) (Nolan, Mag. J.).

Judge Nolan granted plaintiff’s motion to quash defendants’ subpoenas of plaintiff’s counsel – who represented: 1) plaintiffs and perhaps individual defendants in plaintiffs’ earlier trademark prosecution; and 2) plaintiffs in this case. The Court denied defendants’ motions to compel production of communications between plaintiffs and plaintiffs’ counsel and to pierce the privilege.

Defendants argued that plaintiffs committed fraud on the PTO, and therefore inequitable conduct, when plaintiffs’ counsel allegedly knowingly submitted false declarations during prosecution of plaintiffs’ trademarks. Defendants based their claims on an allegedly privileged communication between plaintiff and its counsel (Exhibit L) that plaintiffs claimed was inadvertently produced.

The Court held that Exhibit L was inadvertently produced – it was just one document among 22,000 pages and plaintiffs requested its return immediately after discovering its production. Furthermore, Exhibit L was essentially a list of questions from counsel to plaintiffs, by which counsel was making sure he had sufficient information to file the declarations in question – evidence supporting plaintiffs’ defense of defendants’ inequitable conduct claims.

Finally, while the Seventh Circuit had not ruled on the correct test for whether to allow attorney depositions, the Court followed what it held was the prevailing test in the Northern District, as set forth in Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986):

1. No other available means for obtaining the information;
    
2. Information is relevant and not privileged; and
    
3. Information is crucial to the case.

Id. Because plaintiffs identified four other individuals allegedly having the information – some of whom had not been deposed – defendants had not met their burden to depose plaintiffs’ counsel.

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Blawg Review #174 is available at D. Todd Smith's Texas Appellate Law Blog -- click here to read it.  Smith boldly went without a theme, but it is a great Review, even without a theme.  Smith picks up on my coverage of the Seventh Circuit's recent decision affirming the Northern District's holding that the NFL is a single entity for IP licensing purposes, as well as related coverage at Sports Law Blog and Blawgletter.

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Am. Needle, Inc. v. New Orleans Louisiana Saints, No. 07-4006 (7th Cir. Aug. 18, 2008) (Kanne, J.).*

Judge Kanne, writing for a unanimous panel, affirmed Judge Moran's opinions holding that the National Football League ("NFL") acting through its NFL Properties entity was a single entity and, therefore, dismissing plaintiff American Needle's Sherman Act antitrust claims -- click here and here to read the Blog's post on Judge Moran's prior opinions in this case.  For more than twenty years, NFL Properties licensed American Needle to use various NFL and NFL team trademarks on American Needle's headwear. American Needle filed this suit after NFL Properties entered an exclusive, ten year license with Reebok, ending American Needle’s license rights. Plaintiff argued that the NFL teams collectively, as well as in concert with Reebok, violated the antitrust laws by acting together through NFL Properties to license their collective intellectual property rights exclusively to Reebok (American Needle argued that the NFL did not violate antitrust laws when it licensed to numerous parties, including American Needle, through NFL Properties).

The Seventh Circuit explained that sports leagues are difficult to classify because they display elements of a single entity, as well as elements of a joint venture made up of independent owners.  The Seventh Circuit, therefore, determines whether a sports league is a single entity "one league at a time" and "one facet of a league at a time."  In this case, the NFL was a single entity because for the purpose of promoting its football product -- because no one team can stage a game alone.  It followed that if the NFL was a single entity for promoting football, it was also a single entity for promoting its product by selling NFL apparel.  Additionally, the Court noted that the record established that the NFL teams had been acting as a single entity for IP licensing since 1963.

The opinion's introductory paragraph is also worth discussing.  It is very well crafted, engaging both legal and non-legal readers:

As the most successful and popular professional sports league in America today, the NFL needs little introduction.  Indeed, the NFL has inspired countless hours of heated and in-depth discussion about the league’s 88 years of professional-football history, including its great players, championship teams, and memorable games. But the only discussion the NFL inspires here involves aspects of the league that are not as well known:  the league’s corporate structure, and the nature of its relationships with its member teams and the entities charged with licensing those teams’ intellectual property.

For another perspective on the opinion, check out the WSJ Law Blog's post

*  Click here to read the Seventh Circuit's opinion.

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On Wednesday, August 13 at noon CT, I am giving a teleseminar with Evan Brown (a fellow Chicagoan who writes the insightful Internet Cases blog) and Professor Eric Goldman (who writes the excellent Technology & Marketing Law Blog) discussing the current state of the Communication Decency Act's Good Samaritan clause.  The seminar will focus on, among other things, the Roommates decision in the Ninth Circuit -- click here for Goldman's posts on the case -- and the Craigslist decision from the Seventh Circuit (upholding a Judge St. Eve opinion) -- click here for the Blog's posts about that case and here for Brown's posts. 

Click here for ALI-ABA's web brochure about the seminar.  It promises to be an interesting discussion with lively debate.  And ALI-ABA has generously offered a $30 discount off of the seminar's $149 cost for Blog readers that use this code:  TSPV02DD.

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be brief, be clear, be simple, be vivid, be commonsensical, avoid legalisms, and do not be afraid to spoon-feed us—we will not bite your hand.

• Use visual aids.  But he suggests pictures or objects instead of charts or graphs.  People (and judges are people, although litigators sometimes forget they are) connect with and remember images better than words or statistics, especially when they see the demonstratives quickly and from a distance.
  
• Admit when you do not know and concede when you must.  Few things kill credibility like false statements, even unintentionally false ones, or refusing to admit the obvious.
  
• Rehearse.  And not just by reading your materials and preparing notes.  Set up a session as close to what you can expect as possible.  You practice baseball by playing and running by running, practice argument the same way.
  
• Dress to be taken seriously.  First impressions matter and the judge(s) see you both before and while they hear you.

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e360Insight, LLC v. Comcast Corp., No. 08 C 340, Slip Op. (N.D. Ill. Apr. 10, 2008) (Zagel, J.).

Judge Zagel granted defendant Comcast judgment on the pleadings, dismissing plaintiff e360Insight’s ("e360") Computer Fraud and Abuse Act, First Amendment, and related state law claims. e360, an Internet marketer and accused email spammer, alleged that Comcast harmed e360 by unjustifiably blocking all or most of e360’s emails from Comcast’s customer email accounts. Comcast stopped e360's emails with filtering software that identified and stopped emails from e360 addresses.

Comcast argued that the Good Samaritan clause of the Communications Decency Act, 47 U.S.C. § 230(c)(2), provided Comcast absolute immunity from e360's claims because Comcast voluntarily filtered e360's emails to restrict access to what Comcast believed was objectionable content. The Court held that the Good Samaritan clause provided absolute immunity for ISPs that filtered for objectionable material. The Court also held that Judge St. Eve's and the Seventh Circuit's recent Chicago Lawyers' Committee v. Craigslist opinions – click here for more on those cases – were not applicable. Those opinions limited the clause's protection for ISPs that chose not to filter. Because Comcast filtered, it enjoyed absolute protection. The Court also held that e360's compliance with Congress's spam prevention laws, 15 U.S.C. §§ 7701-13 (Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 ("CAN-SPAM") was irrelevant. Regardless of compliance with CAN-SPAM, the Good Samaritan clause still allowed the ISP to make a good faith judgment that e360's emails were objectionable. And e360 did not sufficiently plead Comcast's lack of good faith in determining that the emails were objectionable.

Eric Goldman at the Technology & Marketing Law Blog has a good post on this case and several other district court cases considering § 230(c) defenses. – click here for his post.

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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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As part of a Federal Courts pilot project, free online Pacer* access and printing has been made available to the general public at sixteen libraries, including the Seventh Circuit's William J. Campbell Library on the 17th floor of the Dirksen Building.  So, you can avoid the $.08 per page charges online with a trip to the courthouse.

A hat tip to the WSJ Law Blog for alerting me to the free Pacer access.

*  Pacer provides access to the dockets from each case in the federal court system, including links to pdf versions of all publicly available documents.

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Last week the intellectual property world obsessed over injunctions – specifically, a preliminary injunction hearing in the Eastern District of Virginia resulting in an injunction against the U.S. Patent & Trademark Office’s (“PTO”) new continuation rules. There was a lot of analysis about the injunction, including live blogging by Patent Practice Center Patent Blog and a lot of post-injunction analysis by, among others: 271 Patent Blog; FileWrapper; Patent Baristas; Patent Docs (and here); Patent Prospector; PHOSITA; Patently-O; WSJ Law Blog; and Washington State Patent Law Blog. For those of you who have no idea what a continuation is or just do not care about the particulars of the rules, I promise that I am done with patent continuations for this post. Honestly, I find the rules rather tedious myself. I prefer to focus on litigating patents, rather than the PTO’s prosecution rules. So, today we talk about injunctions:

According to TechCrunch, Patent Monkey received a permanent injunction when it was sold to the Internet Real Estate Group. But Patent Monkey’s patent search technology will see its injunction lifted when it is used on www.patents.com. Hopefully, for those like me who enjoyed it, Patent Monkey’s Infinite Monkey Theorem Blog will also see its injunction lifted.

Virtually Blind has an interesting report on Second Life’s* new Patent & Trademark Office, the SLPTO. No word on whether the SLPTO and the Second Life legal system generally will allow for any permanent injunctions. Right now it appears that the SLPTO will be heavily skewed toward copyright and trademark, which makes sense in a virtual world. And before we learn whether the SLPTO has any enforcement mechanisms, Blawg IT is offering to represent virtual clients before the SLPTO. I would get a retainer up front Brett – virtual clients can be difficult to track down when the bills are due.

The Patry Copyright Blog shows why Second Life injunctions may be necessary. Six Second Life players have sued a Queens man in the Eastern District of New York for trademark and copyright infringement based upon sales of goods in Second Life. I wonder if the trademarks and copyrights were registered with the SLPTO or the US PTO/Copyright Office. And does the E.D.N.Y. have authority to issue cyber-injunctions?

Promote the Progress provides an interesting piece on the long-term effects of last week’s injunction against the PTO on shaping patent reform.

SportsBiz explains that plaintiffs who were bilked out of millions in attorneys’ fees by their now-jailed lawyers were not irreparably harmed. A Kentucky court awarded them a 20% ownership interest in Curlin, the prize race horse and Breeder’s Cup Classic winner partially owned by the jailed lawyers.

Adams Drafting issues its own injunction against using virgules. Using what? The virgule, or the forward slash. He explains that it is frequently used to mean: 1) “per” – 50 miles/hour; 2) “or” – and/or; and 3) “and” – all parents/subsidiaries/affiliates are bound by the obligations. The problem is that the various uses create ambiguity. Adams acknowledges that he cannot find any litigation specifically about the virgule. But the best solution is to remove the virgule from your writing before you become embroiled in the first litigation over one. And when it comes to rules of writing and grammar, the best solution is to listen to Adams.

What if you do not want an injunction or just want a faster, cheaper resolution? The IP ADR blog is talking about last week’s big settlement between Vonage and Verizon. They suggest that you consider using contingent agreements to control for changing future conditions and charitable contributions. They also point out that creativity and out-of-the-box thinking are important elements for reaching settlements.

Another way to avoid an injunction is to understand how best to argue against the opposing party and their counsel. The Center for Internet & Society discusses how men and women in the United States and in other cultures communicate and suggests that understanding the nuances of how different people communicate around the globe could advance legal discourse.

Lowering the Bar reports on a Michigan man sentenced to sixty days in jail for a home invasion that ended in him throwing two large pickles at residents of the home. No word on whether he will be enjoined from pickle ownership. Okay, that is a weak tie-in, but who can resist a pickle invasion story.

Deliberations discusses one of the basic truths of trial law – you must connect with your jury about basic truths of your case. That is equally true when seeking an injunction – if the judge senses something is not right about your argument, you will not get your injunction.

The writers’ strike that is expected this week is not an injunction, but it will mean an end to new scripted television and movies. Concurring Opinions has an interesting post about a brewing legal dispute between the studios and the writers’ union, the Writers Guild of America (“WGA”). The WGA is requiring that members provide information on all unproduced projects and an update on the status of those projects, as per the labor agreement between the WGA and the studios. But the studios, based upon their individual agreements with writers, are warning writers that the studios  own the scripts and the writers are barred by contract from giving the WGA any information about the projects. These conflicting contracts place the writers in quite a pickle (I could not resist), and it poses an interesting legal question as to which contract controls.

And I end with a post that is actually about an injunction. The Maryland IP Law Blog (another LexBlog creation) posted about a District of Delaware court that upheld a jury verdict of patent infringement and plans to enter a permanent injunction against Lonza, Ltd., Nutrinova Inc. and Nutrinova Nutrition Specialties & Food Ingredients GmbH prohibiting the U.S. sale and use of a fatty acid product currently marketed under the brand name Lonza DHA for use in functional foods and dietary supplements.

Thanks for reading. And for the Blog’s regular readers, I will be back to my usual Northern District of Illinois focus tomorrow.

* Second Life is an internet-based virtual world where “residents” interact through avatars. For example, the Seventh Circuit’s Judge Posner appeared in Second Life with an avatar closely resembling him to answer questions from, among others, a DC IP lawyer using an avatar of a humanized raccoon. Check out the New World Notes blog for a transcript and some screenshots.

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Flentye v. Kathrein, No. 06 C 3492, Slip Op. (N.D. Ill. Oct 2, 2007) (Cole, Mag. J.).*

Judge Cole continued defendants’ motion to compel for one week because defendants had not conducted a Local Rule 37.2 conference before filing their motion. But the Court also provided its thoughts on the prosecution of discovery, both in this specific case and generally. The Court noted that after one year of discovery, “not a single document was produced in response to the 70 paragraph document request!”

But what is most interesting about the opinion is the Court’s quotes on various discovery issues. On discovery generally: 

“[D]iscovery is the bane of modern federal litigation.” Rossetto v. Pabst Brewing Co., Inc., 217 F.3d 539, 542 (7th Cir. 2000). It is intrusive, unpleasant, time-consuming and costly. It is, like life itself, “nasty [and] brutish …” Hobbes, Leviathan, Chapt XIII. Unfortunately, it is not generally “short.”

On Fed. R. Civ. P. 37(a)(4) sanctions:

The great operative principle of Rule 37(a)(4) is that the loser pays. Fee shifting, when the judge must rule on discovery disputes, encourages their voluntary resolution and curtails the ability of litigants to use the legal process to heap detriments on adversaries without regarding to the merits of the claim.

Quoting Rickels v. City of South Bend, Indiana, 33 F.3d 785, 786 (7th Cir. 1994) (Easterbrook, J.) (internal quotes omitted).

On the less-than-civil nature of “modern” litigation:

Unfortunately, what has occurred here thus far is not uncommon, and the often needless disputes arising in discovery are but the current manifestation of the difficulties about which Learned Hand lamented almost three quarters of a century ago. In an address to the Bar Association of the City of New York in 1921, Hand, then a young district judge, spoke about the “atmosphere of contention over trifles, the unwillingness to conceded what ought to be conceded, and to proceed to the things which matter. Courts have fallen out of repute; many of you avoid them whenever you can, and rightly. About trials hang a suspicion of trickery and a sense of a result depending upon cajolery or worse. I wish I could say that it was all unmerited. After now some dozen years of experience I must say that as a litigant I should dread a lawsuit beyond almost anything else short of sickness and death.” Lectures on Legal Topics, Learned Hand, The Deficiencies Of Trials To Reach the Heart of the Matter, 105 (The MacMillan Co. 1926).

On bad blood between litigants:

What Chief Judge Easterbrook recently said in another case seems to apply here: “There is a grudge match.” Redwood v. Dobson, 476, F.3d 462 (7th Cir. 2007). The parties are free to entertain whatever animus they possess towards each other. Judges have no business in trying to regulate thought and emotion. But they do have an obligation to regulate how parties deal with each other and with ensuring that they comply with the discovery provisions of the Federal Rules of Civil Procedure.

*  For more about this case in the Blog's archives click here.

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Sitrick v. Freehand Sys., Inc., No. 02 C 1568, 2007 WL 2298362 (N.D. Ill. Aug. 3, 2007) (Guzman, J.).

Judge Guzman denied plaintiff’s motion to amend the Court’s final order dismissing plaintiff’s patent infringement case with prejudice pursuant to Fed. R. Civ. P. 41(a)(1). Plaintiff sought to amend the order to include the terms of the parties’ settlement agreement because in Lynch v. SamataMason, Inc., 279 F.3d 487, 489 (7th Cir. 2006), the Seventh Circuit held that a court only maintains ancillary jurisdiction to enforce settlement agreements if the dismissal order contains (not just by incorporation) the terms of the agreement. But the Court denied the motion for two reasons. First, the Court’s original order was a nullity because it was issued after the parties filed their unconditional stipulation of dismissal pursuant to Fed. R. Civ. P. 41(a)(1) which immediately ended the Court’s jurisdiction. Second, because the amendment was not clerical, sought within one year of entry of the order or otherwise justified, Fed. R. Civ. P. 60 prevented the Court from amending the order.

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Central Mfg., Inc. v. George Brett, __ F.3d __, Slip Op. (7th Cir. Jul. 9, 2007).

The Seventh Circuit upheld Judge Coar's cancellation of plaintiff's "Stealth" mark for use with baseball bats.  The result is not that surprising in light of the fact that plaintiff had not been able to provide any evidence that it used the Stealth mark for baseball bats prior to defendant, and Hall of Famer, George Brett's and his company Brett Brothers Sports International's first sale of a Stealth bat in 1999 (plaintiff filed a mark application for Stealth in connection with baseball bats in 2001).  Additionally, according to the Seventh Circuit plaintiff is controlled by Leo Stoller who is, according to the Seventh Circuit, a "hyperactive trademark litigator."  The Seventh Circuit also discussed the frivolous nature of most of Stoller's cases:

In fact, Stoller's cases have generally proven so frivolous and wasteful of court resources that since this appeal was filed the Northern District of Illinois has enjoined him or any of his companies from filing any new civil action in the district's courts without first obtaining the court's permission.

 Stoller has appealed the Executive Committee's injunction, and the Executive Committee has already denied Stoller's first request to file a new case in the Northern District.

But the result is not what is most interesting about the Seventh Circuit's opinion.**  What is most interesting, is that the opinion is written in a manner that makes it sufficiently interesting and understandable for non-lawyers to read.  First, it starts with a two page discussion of George Brett's famous "Pine Tar Incident," in which a Brett home run that was the go-ahead run for his Kansas City Royals was canceled and the game lost for the Royals when Yankees manager Billy Martin pointed out to the umpire that Brett's bat had pine tar extending more than 18 inches, against Major League Baseball's rules.  The Seventh Circuit even cites YouTube clips (which have since been removed at the MLB's request) of broadcasts of the game.  And at page 13 of the opinion, the Seventh Circuit takes the rare, bold step of using an exclamation point in explaining that Central's actions in filing suit were "oppressive" and, therefore, warranted awarding attorneys fees and costs:

Central's actions qualify on all counts!

I am generally not a fan of the exclamation point in legal writing, but used in moderation it can be both effective and powerful.  And it creates an informality that makes the opinion more accessible to those without legal training, which Blog readers know I think is very important.

* You can read a copy of the opinion here and more about plaintiff's other Northern District cases in the Blog's archives.

** You can read more about the substance of the case and the baseball connection (including the fact that MLB took had the YouTube clips cited by the Seventh Circuit taken down) at the FileWrapper, the TTABlog, the Technology Law Update, and the Technology & Marketing Law Blog.

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Am. Hardware Manufs. Assoc. v. Reed Elsevier Inc., No. 03 C 9421, 2007 WL 1521185 (N.D. Ill. May 14, 2007) (Moran, J.).

Judge Moran denied in part plaintiff's motion to strike defendants' confidentiality designations regarding the deposition of defendants' former CEO.  Defendants designated as "Highly Confidential," among other portions of the deposition, those portions in which one of defendants' customer contracts (the "Contract") was discussed.  Defendants argued that the terms of the Contract were trade secrets and, therefore, should be given the strongest confidentiality protection available pursuant to the parties' Protective Order.  Magistrate Judge Mason previously reviewed the designation, held that the Contract was not likely trade secret and reduced the related designations to "Confidential."  Judge Moran agreed with Judge Mason, rejecting the argument that the Contract was a trade secret as "conclusory and vague."  And Judge Moran agreed that the Contract warranted a "Confidential" designation.  Judge Moran also explained that while the deposition and related documents would be protected by the Protective Order during discovery, they would not when the Court ruled on dispositive motion or held trial, quoting the Seventh Circuit:

"Secrecy is fine at the discovery stage, before the material enters the judicial record" those documents that "influence or underpin the judicial decision are open to public inspection unless they meet the definition of trade secrets or other categories of bona fide long-term confidentiality."  Baxter Int'l, Inc. v. Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002).  Thus, at the summary judgment, trial or appellate stage, documents that have previously been deemed confidential may not retain such a designation.  See Little v. Mitsubishi Motor Mfg. of Am. Inc., 2006 WL 1554317, at *3 (C.D. Ill. 2006).

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Ace v. Marn, No. 06 C 5335, 2007 WL 1541747 (N.D. Ill. Apr. 17, 2007) (St. Eve, J.).

Judge St. Eve granted in part and denied in part plaintiff/counterdefendant Ace Hardware Corp.'s ("Ace") Fed. R. Civ. P. 12(b)(6) motion to dismiss defendants/counter-plaintiffs' (collectively "Marn") counterclaims.  The Court denied the motion as to Marn's breach of contract claim and dismissed Marn's fraud and tortious interference claims.  Ace and Marn entered an agreement (the "Agreement") allowing Marn the right to use certain Ace trademarks and to purchase product for resale from Ace.  Marn alleged that Ace and its representatives breached the Agreement, made numerous misrepresentations leading up to the signing of the Agreement and failed to provide promised inventory.  Ace argued that Marn's breach of contract claim should be dismissed because it did not identify a specific provision of the Agreement that was breached, citing several Northern District cases.  But noted that each of Marn's cases came down before the Seventh Circuit's decision in Kolupa v. Roselle Park Dist., 438 F.3d 713, (7th Cir. 2006).  In Kolupa the Seventh Circuit explained the Rule 8(a)(2) requirements:

[i]t is enough to name the plaintiff and the defendant, state the nature of the grievance, and give a few tidbits (such as the date) that will let the defendant investigate. . . .  Any district judge (for that matter, any defendant) tempted to write "this complaint is deficient because it does not contain ..." should stop and think:  What rule of law requires a complaint to contain that allegation?  Any decision declaring "this complaint is deficient because it does not allege X" is a candidate for summary reversal, unless X is on the list in Fed. R. Civ. P. 9(b).

Kolupa at 714-15 (emphasis in original).  Based upon the Kolupa decision the Court held that Marn was not required to cite a specific breached section of the Agreement.

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The Seventh Circuit has launched a wiki.  The Wiki is intended to focus on the most difficult portion of practice for those not regularly practicing in a particular jurisdiction -- procedure.  The site is largely broken down by the Seventh Circuit's Rules and allows for practitioners to create an account and add their insights into the implementation of each rule.  It is already an excellent resource.  Much of the early content focuses on briefing requirements.  For example, after the break is a portion of the wiki regarding the formatting of headings that gives insight into what the Seventh Circuit judges might prefer.

Perhaps the Northern District should consider a wiki.

One common use of all-caps text in briefs is argument headings. Please be judicious. Headings can span multiple lines, and when they are set in all-caps text are very hard to follow. It is possible to make heading attractive without using capitals. Try this form:

This form is harder to read:

If you believe that italics and underscores are important to getting your idea across, try something like this (replacing underlining with a rule line beneath the text):

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McKillup Indus., Inc. v. Integrated Label Corp., No. 06 C 3279, 2006 WL 3775954 (N.D. Ill. Dec. 19, 2006) (Bucklo, J.).

Judge Bucklo denied summary judgment that defendant's "integrated labels," "integrated cards" and "integrated forms" marks were generic.  Plaintiff argued that the marks were generic based upon the separate dictionary definitions of "integrated" and "labels/cards/forms" (although there was no dictionary definition of either of the three whole marks) and evidence that competitors use the term, including a Google search of each of the marks.

The Court cited Door Systems, Inc. v. Pro-Line Door Systems, Inc., 83 F.3d 169 (7th Cir. 1996) for the proposition that the fact that a mark's component words are in the dictionary "cannot count for much."  Id. at 171.  In Door Systems, the Seventh Circuit held that "Seven-Up" was not generic even though its component words were.  Similarly, the Court held that the fact that "integrated," "label," "card" and "form" were defined in the dictionary did not weigh in favor of a genericness finding.

With respect to the evidence of the terms' use by competitors, the Court held that the limited evidence presented, which included use of other terms to refer to the products, was not sufficient to warrant summary judgment of genericness.  It was not clear from the evidence how far the alleged generic use extended into the relevant public perception or any specific geographic region.  As a result, summary judgment was denied.

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