Chamberlain Group v. Lear Corp., No. 05 C 3449, Slip Op. (N.D. Ill. Mar. 1, 2011) (Posner, J.).
Judge Posner, sitting by designation, ordered a series of pre-trial deadlines in this garage door opener patent case. The following deadlines were of particular note:
All objections to exhibits were to be in the form of motions in limine, not one-word objections.
Exhibits were limited to what could fit into one binder per side.
The Court was to draft jury instructions and voir dire.

Continue Reading Parties Limited to One Binder of Trial Exhibits Per Side

LexBlog’s Kevin O’Keefe picked up on Judge Posner’s proposal to make linking and summarizing news stories copyright infringement, which I blogged about Friday. O’Keefe takes a different approach than I did, based in part upon a post by Jeff Jarvis at the Buzz Machine. O’Keefe argues that the issue is really that news spreads from newspapers faster today than it used to. But just as newspapers benefited from word of mouth about their stories twenty years ago, they benefit from links to their stories today. As a result, linking should not be limited in any way and certainly not just to prop up the newspaper industry:
Because news spreads faster we’re supposed to give newspapers a monopoly on the news? That’s crazy.
Jarvis makes a compelling point which lawyers advising newspapers ought to think about when counseling newspaper clients.
Schultz and the Marbergers complain about what they call the ‘free-riding’ of aggregators, et al. But they simply don’t understand the economics of the internet. It’s the newspapers that are free-riding, getting the benefit of links.
The framers of our Constitution, including the First Amendment, intended it to endure and cope with the effects of the anticipated changes of our nation.
Things have changed – changed quickly. But let’s be careful when thinking of following lawyers and Judges who may not understand the nature of the change.
I understand his view, although I am not sure it is the best decision from a policy stand point. It is important not to lose site of the fact that copyright holders with content on the internet still have significant protection. Direct copying of the stories is already protected by copyright law, especially if a paper registers its copyrights and can get statutory damages. Of course, as I pointed out Friday, it is hard to police the use of facts from news stories. So, it will be difficult to make an infringement case when someone truly summarizes a news story. But I can see the value in incentivizing traditional news media to continue spending on reporters and reporting. For example, a system of paying newspapers, and other content providers that would choose to opt into the system, a nominal fee for click-throughs on links from your site to a current news story. To me that seems like a reasonable compromise which would not cost most websites much, but could provide real economic benefit to news websites, thereby maintaining reporting staffs. Of course, newspapers could accomplish something similar and maybe even economically better by shifting to subscription-based sites, which has been received with mixed reactions and effects previously.
But more important than which position is correct, is the discussion. While the Constitution does give Congress the power to protect copyrights, it says little about how to protect them. That is left to Congress, which enacts copyright laws based upon the technology available when the law is drafted and some limited vision of technology to come. As a result, it is difficult to effectively apply the Copyright Act of 1976, even with more recent amendments and additions, to every aspect of the internet world. So, in light of the fast pace of technological change over the last ten to twenty years, an open dialogue about how to make the copyright laws adequately protect authors and the public is very important. And as O’Keefe and Jarvis point out, it is a dialogue that requires more than just lawyers, who understand the legal issues, but artists, newspapers, media consumers and many other copyright stakeholders.

Continue Reading More on Judge Posner and the Intersection of Copyright and the Internet

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.

Continue Reading Judge Posner Suggests Tighter Copyright Rules to Protect News Reporting

New Medium LLC v. Barco N.V., No. 05 C 5620, 2008 WL 4615682 (N.D. Ill. Oct. 16, 2008) (Posner, J. sitting by designation).
In my previous entry about this case, I linked to a copy of this decision and briefly explained the result, but did not provide any analysis of the opinion because I was previously involved in the case — click here to read that entry in the Blog’s archives. Since that post, Dennis Crouch has provided some excellent analysis of the opinion — click here to read it at Patently-O. Thanks Dennis.

Continue Reading Posner Inequitable Conduct Opinion Analysis

New Medium LLC v. Barco N.V., No. 05 C 5620, 2008 WL 4615682 (N.D. Ill. Oct. 16, 2008) (Posner, J. sitting by designation).
I was previously involved in this case and, therefore, I have not posted about prior opinions in detail. But because I posted that Judge Posner (who is sitting by designation) was holding an inequitable conduct bench trial/evidentiary hearing in the case, I am posting the opinion Judge Posner issued based upon that hearing — click here to read the opinion and here for the Blog’s prior post. The Court dismissed one of defendant’s inequitable conduct arguments, but based upon the other, held two of the patents in suit unenforceable because of inequitable conduct.

Continue Reading Posner Holds Patents Unenforceable Due to Inequitable Conduct

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.

Continue Reading Seventh Circuit’s Judge Posner Hears Northern District Bench Trial

The Seventh Circuit’s Judge Posner wrote a Tips from the Trenches column for the ABA in May. The article was well written and insightful, no surprise from Judge Posner. He summed up his advice like this:
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.
He also provided more detailed advice. Here are my favorites:
* 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.
Most of Judge Posner’s points apply to both district and appellate court arguments. The article is worth a read.

Continue Reading Argument Advice from the Seventh Circuit’s Judge Posner

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 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.

Continue Reading Blawg Review #133

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.

Continue Reading Court Waxes Eloquent on Discovery

Cummins-Allison Corp. v. Glory Ltd., No. 02 C 7008 (N.D. Ill. Apr. 25, 2007) (Posner, J.).

Judge Posner, sitting by designation, entered an order dismissing all claim and counterclaims without prejudice and terminating the case, on what appeared to be near the eve of trial.  The parties filed a Stipulated Dismissal earlier in the