If At First You Don’t Succeed

Submitted by patentadmin on Mon, 06/21/2010 - 11:00

While perseverance in the face of adversity is deemed admirable, if carried to the extreme, it becomes a pathological inability to face reality and accept defeat. Unfortunately, some people are unable to discern where the one ends and the other begins. When this lack of judgment occurs in the legal arena, the courts may be called upon to put a stop to the matter. (Allegra Hemphill v. Kimberly-Clark Corporation and Proctor & Gamble Company)

Ms. Hemphill is the owner – and inventor – of a patent directed to a vaginal swab. In March 1999, she sued Johnson & Johnson in the District of Maryland, alleging that certain sanitary napkin products infringed her patent. During claim construction proceedings, the Maryland court noted that, during prosecution of her patent application, Ms. Hemphill had distinguished her invention over the prior art by stating that her swab, “did not behave, operate, or function like a sanitary napkin.” In light of this disclaimer, the court granted summary judgment of noninfringement. Ms. Hemphill appealed – and lost. She then sought certiorari from the Supreme Court, which was denied.

In November 2002, she returned to Maryland where she filed an infringement action against P&G and K-C. Applying its previous claim construction, the court again granted a summary judgment of noninfringement. Ms. Hemphill appealed and, when the appeal was denied, again petitioned for review by the Supreme Court. Her petition was denied. Undaunted, she filed a motion for a “Final Judgment” in her favor in the Maryland court. When her motion was denied, she appealed – unsuccessfully – and then petitioned for certiorari from the Supreme Court – also unsuccessfully.

Certainly not a quitter, Ms. Hemphill filed suit in the District of Columbia in July 2007, alleging infringement of her patent by the same P&G products at issue in the Maryland suit. The defendants moved for dismissal on the grounds of res judicata. When their motion was granted, Ms. Hemphill moved for reconsideration. When the district court denied her motion, she appealed – unsuccessfully.

In January 2009, Ms. Hemphill sued P&G and K-C in the D.C. district court, alleging “fraud on the court” and “conspiracy.” Specifically, she claimed that their attorneys had deceived the courts in her previous cases by falsely claiming that the accused products were “sanitary napkins” when in fact they were labeled as “pads, maxi-pads, mini-pads, etc.” The Court, not buying this argument, dismissed the case. Ignoring the Court’s warning that “[i]t is time … to accept the judgments of the courts and to cease suing the Defendants,” she moved for reconsideration. The defendants, their patience exhausted, moved for sanctions against Ms. Hemphill. The Court then ordered her to show cause why sanctions should not be imposed.

During the “show cause” hearing, Ms. Hemphill steadfastly attempted to reassert her fraud arguments, whereupon the Court, finally losing patience, granted the motion for sanctions. The sanctions order enjoined Ms. Hemphill from filing any further lawsuits against P&G or K-C without first obtaining leave of the D.C. district court. To that end, she will be required to certify and explain how any new complaint raises matters not previously decided by any federal court.

In June 2009, Ms. Hemphill, still unvanquished, appealed the sanctions order to the C.A.F.C. The C.A.F.C. noted that such an injunction is “an extreme remedy” and that a court must “take great care not to unduly impair a litigant’s constitutional right of access to the courts.” To support such an injunction, the court should make findings “as to any pattern” of behavior, looking to “both the number and content of the filings as indicia of frivolousness and harassment.” Turning to the record before it, the C.A.F.C. determined that the district court had clearly met this standard. Injunction affirmed.

If history is any guide, Ms. Hemphill’s petition to the Supreme Court should be filed any time now.

THE LESSON TO BE LEARNED: Not all courts are this lenient, nor all defendants so charitable – yes, God forgive us, we said something nice about big corporations. If you lose, limit yourself to a single appeal.

Submitted by Anonymous (not verified) on Wed, 06/30/2010 - 02:59


The plaintiff in Bilski v. Kappos would have done well to have heeded this advice. As the song says, you've got to know when to fold 'em. Then again, some have speculated that Bilski may have had a positive interest in losing the case ... which doesn't appear to be the case with poor Ms. Hemphill.

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