October 2009

For obvious reasons, the overwhelming majority of attorneys are polite in their communications with judges. A few are downright obsequious. We now find one attorney who is bucking the tide.

In a document entitled, “Plaintiff’s Counsel’s Motion For A Honest And Honorable Court System,” filed in the Federal District Court For The District Of Arizona, the plaintiff, Tajudeen O. Oladiran, an attorney acting pro se and professing to rely on “the law of, what goes around comes around,” called the judge “a brainless coward.”

“Polling the jury” is a procedure which, if it occurs, takes place after a jury has rendered its verdict. An attorney for one of the parties may inquire of each of the jurors, in turn, whether they personally agree with the panel verdict. Occasionally, wilting under the steely-eyed glare of an indignant lawyer, a juror will recant, resulting in the jury being ordered back for further deliberations, or possibly a mistrial.

A patent owner sues for infringement of several of its patents. Ultimately, the parties to the action reach a settlement which grants, to the defendant, a license under the patents in suit. The license agreement includes a covenant not to sue which “shall not apply to any other patents issued as of the effective date of this Agreement or to be issued in the future.” It further includes a release which specifies that “[n]o express or implied license or future release whatsoever is granted to [licensee] or to any third party by this Release.”

A researcher, working at a university, executed an agreement to assign his inventions to the university. Subsequently, he participated in a joint research project between the university and a private company. In conjunction with this joint project, the researcher executed a Confidentiality Agreement, pursuant to which he agreed that he “will assign and does hereby assign” to the private company all inventions resulting from his work on the joint research project.

A reader of intellectual property trade publications is certainly aware that there exists a degree of antipathy towards “Non-Practicing Entities” (“N.P.E.s”), wherein such entities are pejoratively known as “trolls.” Most of this is instigated by the corporate infringers (“scumbags”) sued by the N.P.E.s. Much of it is unwarranted; some, however, is not.

Whatever else you may want to say about Microsoft Corporation, they certainly know how to overcome an adverse jury verdict in a patent infringement case. Of course, sometimes the plaintiff goes out of its way to help them.

In a recent case, Uniloc USA, Inc. and Uniloc Singapore Private Limited v. Microsoft Corporation, the jury found the patent-in-suit valid and infringed. They found the infringement to be willful. They awarded the plaintiffs damages of $388M – before any enhancement.

Expert witnesses – witnesses who testify as to their “professional” opinions – may be paid for their testimony (actually, they won’t testify unless they are paid). Supposedly, they are paid for their time, the content of their testimony being (again, supposedly) unbiased (apparently because they are “professionals”).

Fact witnesses – witnesses who testify as to facts, i.e. what occurred, may not be paid for their testimony, as it is believed that this could prejudice their testimony (fact witnesses are generally not “professionals”).

Recently, we wrote about a lawyer whose motion was denied because it was so riddled with errors as to be incomprehensible (see Most Embarrassing Moment). We now have a Wisconsin state court case where a lawyer was fined $100 for getting a case citation wrong.

The Court was apparently frustrated in its attempts to find the mis-cited case and gave vent to its frustration by fining the unnamed attorney. Holding lawyers to professional standards – who knows where this could lead?

This is serious! As noted in a previous blog (see The Value Of A Date-Picker) Microsoft has succeeded in overturning a judgment, won by Lucent, in the amount of $358M. The issue of damages will now be retried. Thus, Microsoft’s victory is only partial, as a new damage award will still likely be measured in the hundreds of millions of dollars.

Does a patent assignment which conveys “all rights, title and interest...to the inventions covered hereby and any division, reissues, continuations and extensions thereof” also cover continuation-in-part (“C.I.P.”) applications and any patents issuing thereon? The answer is: the Court doesn’t really know. Gerber Scientific Int’l. v. Satisloh AG

Doogie Howser is alive and well and practicing law in California. Kiwi Camara – I am not making this up – is representing author Elaine Scott in a copyright infringement suit against Scribd.com, a website that allows people to publish their writings online.

Apparently, someone posted a copy of Ms. Scott’s book on the Scribd website without her permission. At her request, Scribd removed her book from their website. Ms. Scott, however, was not satisfied, claiming Scribd had not done enough to prevent the unauthorized posting. She retained Mr. Camara to sue Scribd.

It is not uncommon for the defendant in a patent infringement action to move for a summary judgment of invalidity of the patent-in-suit. It is, however, apparently unique for the plaintiff to do so. In Re Acacia Media Technologies Corp.

Acacia filed more than twenty (20) suits alleging infringement of various claims of five patents, all of which were based on the same specification. The various cases were all transferred to the Federal District Court for The Northern District of California for proceedings under the Multi-District Litigation Rules.

Many laypersons, f/k/a laymen, find lawyers’ writings to be incomprehensible. Now, a federal judge does too.

U.S. District Judge Gregory Presnell has denied a motion filed by attorney David W. Glasser, finding it to be “riddled with unprofessional grammatical and typographical errors that nearly render the entire motion incomprehensible.” The judge marked the errors, in red, on the motion papers and returned them to the attorney with instructions to send a copy to the attorney’s client.

As the reader may (should) remember, an article claim of a patent is infringed if all of the claim limitations are found in the accused product. Note that this statement is silent as to when the claim limitations must be present. A recent case turns on that fascinating – to patent attorneys – issue. Gemtron Corporation v. Saint-Gobain Corporation

A recent, but growing, phenomenon is clients suing their lawyers. The most recent such case is of particular interest and not some little entertainment value. DataTern, Inc. et al. v. Foley & Lardner LLP