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 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.
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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Recycled Paper Greetings, Inc. v. Davis, No. 08 C 236, __ F. Supp.2d __, 2008 WL 282687 (N.D. Ill. Feb. 1, 2008) (Bucklo, J.).
Judge Bucklo denied plaintiff's, Recycled Paper Greetings ("RPG"), motion for a temporary restraining order in this trade secret misappropriation action. RPG argued that it was either part of a joint venture or, at least, a confidential relationship with defendant Kathy Davis to develop a signature line of greeting cards. RPG contends that Davis took confidential information regarding the greeting card line to a competitor. Davis countered that she had terminated her contract with RPG pursuant to the contract's termination provision before working with RPG's competitor and there was, therefore, no breach or misappropriation. At an initial hearing, the Court suggested that live testimony might be required to fully resolve the motion for the TRO. But both parties told the Court that their respective witnesses would not be available during the necessary time frame to testify. Because no witnesses were available, the Court denied the TRO, holding that it lacked sufficient information to determine that RPG maintained its alleged trade secrets with sufficient secrecy or the nature of the relationship between RPG and Davis.
Practice tip: If you are seeking a TRO, line up commitments from your potential witnesses to be available both flexibly and quickly. Not many judges will grant TROs if plaintiff cannot present requested witnesses.
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Morton Grove Pharms., Inc. v. Nat'l. Pediculosis Assoc., __ F. Supp.2d __, 2007 WL 4259422 (N.D. Ill. Nov. 30, 2007) (Bucklo, J.).
Judge Bucklo granted in part defendants Fed. R. Civ. P. 12(b)(2) motion to dismiss and denied defendants' motion to transfer the case to the Eastern District of Michigan. Plaintiff manufactures a line of lotions and shampoo which are FDA-approved for treating lice and scabies. Defendants are a Michigan non-profit group, Ecology Center, Inc., and related individuals (collectively the "Center"), as well as the National Pediculosis Association. The Center mailed two newsletters related to passage of Michigan legislation to approximately 19,000 addresses of which 44 were in Illinois. 99% of the Center's donors were from Michigan, with just .23% from Illinois (18 Illinois-based donors total). The Center's strongest ties to Illinois consisted of two donations totaling $270,000 from an Illinois-based foundation and an interactive website which accepts donations, although none have come from Illinois. The Court previously held that these contacts did not create general jurisdiction.*
The Court held that the Center's act of sending even the two newsletters with the allegedly misleading and defamatory statements created specific jurisdiction over the Center. But the Court held that there was not specific jurisdiction over individual defendant William Weil. Weil's name appeared in the newsletter, but he submitted an affidavit stating that he did not participate in mailing the newsletter and had no knowledge that it was being sent to any Illinois residents.
The Court did not transfer the case to the Eastern District of Michigan because the Center did not show that Michigan was clearly more convenient than the Northern District. Each party's witnesses were in their preferred jurisdiction - the plaintiff's in Illinois and the Center's in Michigan - and the interests of justice are served by keeping the case in the Northern District. While median times to trial in both districts were comparable, plaintiff's related, pending case in the Northern District made the Northern District the correct court to hear the case, even though the Court had severed the related case from this one.
* For discussion of the Court's previous personal jurisdiction decision in this case, click here.
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Judges Coar, Gettleman, Kennelly and Lefkow are continuing their joint trial call (started in 2007, click here for the Blog's post about it).* Each judge is contributing cases to the call, apparently at the judge's discretion. The cases in the call will be tried in order by one of the five judges, although not necessarily the judge originally assigned the case. Each trial is expected to last no longer than five days and the attorneys and parties for a case on the call are expected to be ready for trial, including producing witnesses, on 48 hours notice. So far, I do not believe any IP cases have been put on the joint call. And I suspect that the five day trial limit will remove at least the typical patent case from the joint call, although plenty of trade secret, trademark and copyright cases could end up on it.
* Judge Bucklo was a part of the joint call last year, but is not listed this year.
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Abanco Int'l., Inc. v. Guestlogix Inc., __ F. Supp.2d __, 2007 WL 1492928 (N.D. Ill. May 21, 2007) (Bucklo, J.).
Judge Bucklo dismissed plaintiff's conspiracy claim but not its unjust enrichment and tortious interference claims, holding that the former was preempted by the Illinois Trade Secret Act ("ITSA"). Plaintiff alleged that it entered a business relationship with defendant, supported by a confidentiality agreement (the "Agreement"). The parties were working together to supply airlines with electronic "buy-on-board" systems that would allow passengers to pay for drinks and other in-flight purchases with credit cards. Plaintiff alleged that, based upon the Agreement, it provided defendant confidential, trade secret information about its buy-on-board system (the "Abanco System") and that with defendant's support, plaintiff entered negotiations to provide the Abanco System to third party American Airlines. But after the parties' relationship soured, American Airlines allegedly ended negotiations with plaintiff and entered an agreement with defendant for a buy-on-board system. Plaintiff then filed suit against defendant alleging trade secret misappropriation, breach of the Agreement, unjust enrichment, tortious interference and conspiracy. The Court held that plaintiff's unjust enrichment and tortious interference claims were not preempted by ITSA because they were based upon information protected by the Agreement in addition to plaintiff's alleged trade secrets.
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Vanguard Prods. Group, Inc. v. Diam USA, Inc., No. 05 C 1323, Slip Op. (N.D. Ill. May 16, 2007) (Bucklo, J.).*
Judge Bucklo granted plaintiffs summary judgment of infringement and denied defendants summary judgment of invalidity. The Court first construed the two claim terms at issue -- "electrically coupled" and "via the modular connector." In both cases, the Court adopted the plaintiffs' construction after a detailed review of the intrinsic and extrinsic evidence. Because neither term was in the original application or appears in the specification, the intrinsic evidence focused on the use of the terms within the claims. Defendants also attempted to use claim language from a parent application to support their constructions, but the Court held that the prosecution of a term in a parent application generally does not limit different terms in its progeny. In the instant case, the Court found that the parent application had used the broader term "electrical connection" instead of "electrically coupled" which weighed against defendants' construction. Having ruled in plaintiffs' favor on the claim construction, the Court held that defendants' products infringed the asserted claims of plaintiffs' patents. And the Court held that defendants' asserted prior art did not anticipate plaintiffs' patents.
* Because I beat Westlaw on this one, you can access a copy of the Court's opinion here. Please note that the Court issued a subsequent order modifying the opinion by deleting footnotes three and four, which were not intended to be part of the opinion.
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Morton Grove Pharms., Inc. v. Nat'l. Pediculosis Assoc., __ F. Supp.2d __, 2007 WL 1302971 (N.D. Ill. May 3, 2007) (Bucklo, J.).
Judge Bucklo granted defendants' motion and dismissed plaintiff's deceptive trade practices case for lack of personal jurisdiction. Defendants' sporadic contacts with Illinois did not confer general jurisdiction. Plaintiff manufactures a line of lotions and shampoo which are FDA-approved for treating lice and scabies. Defendants are a Michigan non-profit group, Ecology Center, Inc., and related individuals (collectively the "Center"), as well as the National Pediculosis Association which is not a party to the motion to dismiss.The Center mailed two newsletters related to passage of Michigan legislation to approximately 19,000 addresses of which 44 were in Illinois. 99% of the Center's donors were from Michigan, with just .23% from Illinois (18 Illinois-based donors total). The Center's strongest ties to Illinois consisted of two donations totaling $270,000 from an Illinois-based foundation and an interactive website which accepts donations, although none have come from Illinois. The Court held that these occasional contacts did not rise to the level of continuous and systematic, as required for general jurisdiction.
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GMAC Real Estate, LLC v. E.L. Cutler & Assocs., Inc., 472 F. Supp.2d 960 (N.D. Ill. Oct. 20, 2006) (Bucklo, J.). Judge Bucklo held that the Court lacked personal jurisdiction over defendant and dismissed plaintiff’s complaint. Plaintiff, a franchiser of residential real estate brokerages, brought this suit alleging that defendant, a former franchisee, breached its … Continue Reading
Chicago Tribune Co. v. Fox News Network LLC, No. 07 C 0865, 2007 WL 1052508 (N.D. Ill. Apr. 4, 2007) (Bucklo, J.).* Judge Bucklo denied plaintiff Chicago Tribune’s ("Tribune") motion for a preliminary injunction. The Tribune sought an injunction which would have required defendant Fox News Networks ("Fox") to change the name of its "Redeye" … Continue Reading
International Profit Assocs., Inc. v. Paisola, 461 F. Supp.2d 672 (N.D. Ill. Nov. 14, 2006) (Bucklo, J.). Judge Bucklo held that plaintiff was likely to succeed on its Lanham Act and cyberpiracy or cybersquatter, 15 U.S.C. Section 1125(d), claims and issued a temporary restraining order ("TRO") preventing defendants from conduct that likely infringed plaintiff’s trademarks. … Continue Reading
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" … Continue Reading
Judges Bucklo, Coar, Gettleman, Kennelly and Lefkow are instituting a joint trial call in 2007 (the N.D. Ill.’s statement about it is here). Each judge is contributing cases to the call, apparently at the judge’s discretion. The cases in the call will be tried in order by one of the five judges, although not necessarily … Continue Reading
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 … Continue Reading