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Judge Feinerman granted defendant BP Lubricants’ Fed. R. Civ. P. 12(b)(6) motion to dismiss plaintiff Simonian’s false patent marking case with prejudice. After the Federal Circuit held Simonian’s intent allegations lacking, Simonian amended its Complaint. The Court held that the amended complaint did not meet Rule 9(b) pleading standards for the following reasons:
Simonian’s allegation that a license agreement proved BP Lubricant’s knowledge of the patent’s expiration failed because the Agreement did not reference the patent’s expiration date.
General allegations that BP Lubricants understand that patents expire did not create intent. Allegations that BP Lubricants briefly litigated the patent may have been sufficient.
The fact that the term of the patent was printed on its face was also not sufficient to show intent. Allowing this allegation to create intent would render the BP Lubricants decision a “dead letter.”
While BP Lubricants allegedly revised its front labels three times after the patent’s expiration, BP Lubricants did not revise the back label containing the marking. Because the marking was never revised, the label revisions were irrelevant.
Finally, because Simonian was fully aware of the BP Lubricants decision when he prepared his amended complaint, and because he did not seek leave to replead the dismissal was made with prejudice.
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Continue Reading Revised Label Does Not Create False Marking Intent

The patent pilot program started this month in the Northern District and across the country. The pilot program is a ten-year look at ways to handle patent cases more effectively. The main component of the pilot program is judges in pilot districts, including the Northern District, self-selecting as patent judges. Patent cases will continue to be randomly assigned to all Northern District judges. But when a non-patent judge is assigned a patent case that judge will have thirty days to order reassignment of the case. When reassignment is ordered, the case will be randomly reassigned to one of the patent judges. There will also be patent-related education and programs offered for the patent judges across the country.
One unanswered question about the pilot program remains: If a non-patent judge was assigned a patent case less than thirty days before the program kicked off on September 19, can the non-patent judge order the patent case reassigned pursuant to the pilot program? I have not seen it happen yet, but I suspect it could over the next week or two.
The Northern District issued the following list of judges who have self-selected as patent judges:
Chief Judge James F. Holderman
Judge Ruben Castillo
Judge John W. Darrah
Judge Gary S. Feinerman
Judge Virginia Kendall
Judge Matthew F. Kennelly
Judge Joan Humphrey Lefkow
Judge Rebecca R. Pallmeyer
Judge Amy J. St. Eve
Judge James B. Zagel
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Continue Reading Northern District of Illinois Patent Program Begins

In late January, the Northern District’s six newest judges attended a Federal Bar Association* panel to offer insights into their practices and chambers. The recurring theme of the discussion was a call for civility: Civility in court. Civility in briefs. Civility in emails. Over the next several weeks, I will provide summaries of each judge’s comments and insights. This post (the third in the series) focuses upon Judge Fienerman:
Allege diversity jurisdiction properly (watch corporate entities)
Assume he has read the papers when arguing
Be prepared to argue motions when noticed
Answer the question the court asks: If it is a yes or no question, the answer should start with “yes”, “no” or “I cannot answer that because. . . .”
Jury trials: respect juries and use humor sparingly
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Continue Reading New N.D. Illinois Judges Panel: Judge Feinerman

Chief Judge Holderman recently gave the annual State of the Court address, concluding that the Northern District continues to be an active, growing district court. Civil case filings were up 6.2% from 2008 to 2009, and the Northern District remains in the top 10% of district courts for median time to disposition – 6.2 months.
The Court began 2009 with one vacant judgeship – created by Judge Filip’s March 2008 resignation. The Court ended 2009 with from after Judges Bucklo, Coar and Gettleman took senior status. In February 2010, Judge Manning also took senior status. Judge Feinerman was confirmed last month, reducing the vacant seats by one, but there could be five vacancies again at the end of July when Judge Anderson retires.
The magistrate bench was also active. Judges Ashman and Keys shifted to recalled status. Judges Finnegan, Gilbert and Kim joined the bench.
Finally, the number of registered e-filers is up 18% to over 25,000. And the daily filing rate is up 15% to an average 867 documents per day.
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Continue Reading The State of the Northern District Remains Strong

Late Monday night, the Senate confirmed Gary Feinerman as the Northern District of Illinois’s next district judge. Judge Feinerman was most recently a partner with Sidley. He also served as a law clerk to Judge Flaum of the Seventh Circuit and then Justice Kennedy, after which he served in the Justice Department and as Illinois’s Solicitor General. Judge Feinerman fills the vacancy created when Judge Gettleman took senior status.
Welcome to the Northern District of Illinois bench Judge Feinerman.
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Continue Reading Welcome to the Northern District of Illinois Judge Feinerman

Late last month, the Senate Judiciary Committee unanimously approved President Obama’s recent appointments to fill two of the five pending or scheduled vacancies on the Northern District of Illinois bench. Sharon Coleman and Gary Feinerman now await confirmation by the full Senate.
President Obama has now nominated Assistant U.S. Attorney Edmon Chang to fill the third of the five vacancies. Chang started his career as a Northern District of Illinois clerk for Judge Aspen and then as a Sixth Circuit clerk for Judge Ryan. Chang’s bio from Senator Durbin’s press follows:
Chang has served as an Assistant U.S. Attorney in the Northern District of Illinois since 1999, and he is currently the chief of appeals. He previously worked as an associate at Sidley Austin in Chicago, and as a judicial law clerk to Judge Marvin Aspen in the Northern District of Illinois and Judge James Ryan on the U.S. Court of Appeals for the 6th Circuit. He received a Star of Distinction award from the Chicago Crime Commission. He has served as an adjunct professor at Northwestern University law school, where he graduated with honors and served on the law review.
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Continue Reading Obama Continues to Fill Northern District of Illinois Bench Vacancies

This week President Obama appointed Illinois Appellate Court Justice Sharon Johnson Coleman and Sidley Austin partner Gary Scott Feinerman to the Northern District of Illinois bench. Here is biographical information from President Obama’s press release:
Justice Sharon Johnson Coleman sits on the Illinois Appellate Court in Chicago, a position she has held since 2008. From 1996 until 2008, Justice Coleman served as a judge of the Circuit Court of Cook County, Illinois. Between 1993 and 1996, she held the position of Deputy State’s Attorney and Bureau Chief for the Public Interest Bureau of the Cook County State’s Attorney’s Office. From 1989 to 1993, Justice Coleman served as an Assistant United States Attorney in the Northern District of Illinois. From 1984 until 1989, she was an Assistant State’s Attorney in Cook County. Justice Coleman received her J.D. in 1984 from Washington University School of Law in St. Louis and her B.A. in 1981 from Northern Illinois University.
Gary Scott Feinerman is a partner in the Chicago office of Sidley Austin LLP, where he practices in the general litigation and appellate practice groups. He received his B.A., summa cum laude¸ from Yale College in 1987 and his J.D. from Stanford, where he was a member of the Order of the Coif and the Law Review, in 1991. After law school, Feinerman clerked for Judge Joel M. Flaum of the Seventh Circuit and for Justice Anthony M. Kennedy of the Supreme Court of the United States. After his clerkships, Feinerman worked in the Justice Department’s Office of Policy Development (now known as the Office of Legal Policy). From 2003- 2007, Feinerman served as Solicitor General of Illinois, where he received Best Brief Awards from the National Association of Attorneys General in each year from 2004-2007.
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Continue Reading President Obama Nominates Two to the N.D. Illinois Bench

Illinois’s senior senator Dick Durbin recently sent President Obama the names of seven nominees to fill three vacancies on the Northern District of Illinois bench. The nominees are AUSA Edmond Chang, Illinois appellate Judge Sharon Coleman, Magistrate Judge Susan Cox (click here to read about Judge Cox’s IP opinions in the Blog’s archives), Thomas Durkin, Gary Feinerman, Mary Rowland and Magistrate Judge Maria Valdez (click here to read about Judge Valdez’s IP opinions in the Blog’s archives).
Here are biographies of each nominee from Senator Durbin’s press release:
Chang has served as an assistant U.S. attorney in the Northern District of Illinois since 1999, and he is currently the chief of appeals. He previously worked as an associate at Sidley Austin, and as a judicial law clerk to Judge Marvin Aspen in the Northern District of Illinois and Judge James Ryan on the U.S. Court of Appeals for the 6th Circuit. He has served as an adjunct professor at Northwestern University law school, where he graduated with honors and served on the law review. He lives in Northbrook.
Coleman is a judge on the Illinois Appellate Court, following her election in 2008. She served as a judge on the Circuit Court of Cook County from 1996 to 2008. Before that, she was a supervisor in the Cook County state’s attorney’s office and an assistant U.S. attorney in the Northern District of Illinois. She has served on the boards of numerous bar associations and public interest organizations. She is a graduate of Washington University law school in St. Louis, and she lives in Chicago.
Cox has been a U.S. Magistrate Judge in the Northern District of Illinois since 2007. She previously worked as a litigator at several Chicago law firms, as an assistant U.S. attorney in the Northern District of Illinois, and as a judicial law clerk to Judge Wayne Andersen in that district. Judge Cox has served on the boards of many bar associations and public interest organizations. She has taught as an adjunct professor at DePaul University law school, and she is a graduate of Boston University law school, where she served on the law review. Judge Cox lives in LaGrange.
Durkin has been a partner at Mayer Brown since 1993 and was the chair of the firm’s pro bono committee for nearly a decade. He previously served as an assistant U.S. attorney in the Northern District of Illinois for over twelve years. He served as a judicial law clerk to Judge Stanley Roszkowski in the Northern District of Illinois. He is a graduate of DePaul University law school, where he has taught as an adjunct professor. Durkin lives in Downers Grove.
Feinerman has been a partner at Sidley Austin since 2007. From 2003 to 2007, he served as Illinois’s solicitor general, and before that he was a partner at Mayer Brown. He has argued numerous cases before the U.S. Supreme Court and Illinois Supreme Court. He served as a judicial law clerk to Justice Anthony Kennedy on the U.S. Supreme Court and Judge Joel Flaum on the U.S. Court of Appeals for the 7th Circuit in Chicago. He has served on numerous boards and is the president of the Appellate Lawyers Association of Illinois. He graduated from Stanford Law School and lives in Winnetka.
Rowland is a partner at the Chicago law firm of Hughes Socol Piers Resnick & Dym, where she has worked since 2000. From 1990 to 2000, she worked at the Federal Defender Program in Chicago, including five years as the chief appellate attorney. She has served on numerous boards. She was a judicial law clerk to Judge Julian Cook in the Eastern District of Michigan, and she is a graduate of the University of Chicago law school. Rowland lives in Oak Park.
Valdez has been a U.S. Magistrate Judge in the Northern District of Illinois since 2005. From 1992 to 2005, she was the Chicago regional counsel and staff attorney for the Mexican American Legal Defense and Educational Fund. Prior to that, she worked as a Deputy Federal Public Defender in California. She has served on many boards. She is a graduate of the University of California-Hastings law school, and she lives in Western Springs.
A hat tip to Ameet Sachdev at the Chicago Tribune’s Chicago Law Blog for identifying this story last week.
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Continue Reading Senator Durbin Sends Northern District Judicial Nominees List to President Obama