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

Everything Baseball Ltd., LLC v. Team Athletic Goods, Inc., No. 05 C 5526, 2007 WL 2608551 (N.D. of Ill. Sep. 4, 2007) (Pallmeyer, J.).*

Judge Pallmeyer construed the claims of plaintiff’s patent to a baseball catcher’s chest protector with flexible shoulder guards. Defendant argued that the “scope and content of the prior art” should be determined before construing the claims, citing the Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc) dissent. But the Court held that it need not survey the prior art before construing the claims. And the Court noted that the quoted portion of the Phillips dissent argued that obviousness should receive de novo review, as does claim construction. The dissent was not attempting to add additional claim construction steps.

Additionally, and maybe most importantly for Cubs fans (like me) still smarting over being swept out of the playoffs this season, the Court explained in a footnote Javy Lopez’s (who wore a patented chest protector for at least one year) connection to the Tommy John surgery from which Cubs’ ace Kerry Wood has arguably never fully recovered. If Kerry Wood were still the 20 K kid he once was, maybe the Cubs would have given the Colorado Rockies a run in the NLCS, setting up a Cubs-Red Sox Series that would have been a dream for Cubs fans, baseball historians and network executives. Unfortunately, the Cubs curse (or at least lack of postseason success) lives another year and the Rockies get a chance to complete an amazing rags to riches story.

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

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Everything Baseball Ltd., LLC v. Team Athletic Goods, Inc., No 05 C 5526, Slip Op. (N.D. Ill. Aug. 16, 2007) (Pallmeyer, J.).

Judge Pallmeyer denied defendant Team Athletic Goods, Inc.’s (“TAG”) Fed. R. Civ. P. 12(b)(1) motion to dismiss for lack of standing. The inventors of the patent at issue, for baseball chest protectors, assigned their rights in the patent to Everything Baseball Ltd. (“EB Ltd.”), but the correct corporate name was Everything Baseball Limited, LLC (“EBL LLC”). Plaintiffs argued that because EBL LLC was not the assignee when it filed suit, the Court should dismiss the case. But the Court held that the assignment to EB Ltd. was a clerical error and that the parties’ clear intent was to assign to plaintiff EBL LLC. The Illinois’s records show that while EBL LLC was incorporated, EB Ltd. never existed. Furthermore, some months after TAG identified the error, EBL LLC amended their assignment with the PTO. But the Court did note that the amended assignment could not create standing in this suit. The Federal Circuit case law is clear that where standing does not exist when the suit is filed, it cannot be corrected during the suit. The difference in this case was the Court’s ruling that the intent of the assignment agreement was to assign the patent in suit to EBL LLC, not EB Ltd., which did not exist.

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