Judge Posner Ruins Weekends

Not long ago, Mr. Gillette noted that some lawyers like to drop Friday afternoon bombs on their adversaries—apparently just to ruin their weekends. (Although an alternative explanation is that the lawyers are just trying to save their own weekends.)

Longer ago, I blogged about a patent infringement case that started out in the Western District of Wisconsin. The initial "newsworthiness" of the case was that a tiny Milwaukee bakery was included as a defendant among several other multi-national corporations. (**SEE below for update on that front.) But the plot eventually thickened when the case was reassigned for pre-trial and trial here in Chicago in front of Seventh Circuit Judge Richard A. Posner. (Judge Posner likes to keep busy, obviously.)

At that time I noted that Judge Posner's case management order contained a rather unorthodox provision: all motions were to be filed by the close of business on Friday, and responses were due by the end of the day on the next Monday. This is built-in weekend ruination. Someone asked in the comments whether that was standard practice in the Northern District of Illinois, but I never answered. Rest assured, it is not.

I decided to check up on the case. Right now it is mired in patent-litigation hell. Judge Posner issued his "Markman order" (construing various claims of the patent) back in August, then the parties exchanged expert reports. Now both sides have filed "Daubert motions" attacking the foundation and/or reliability of the other side's experts.

Just last Friday, Judge Posner issued an order regarding the Daubert motions. His two-page, single-spaced order notes that the Daubert motions raise two issues that require claim constructions not resolved by his previous Markman ruling. Judge Posner wants the parties to brief these two issues before he can rule on the Daubert motions. And, in this order issued last Friday, he says he wants those briefs by Monday—today.

Once again: happy weekend, lawyers!

***Update on East Side Ovens: Reader(s)™ may recall that I originally speculated that the only reason the tiny bakery (East Side Ovens) was included as a defendant was to secure a basis for venue in the Western District of Wisconsin, which has a reputation as a "rocket docket" in patent cases. This was bolstered when the plaintiff cited that reputation in opposition to the defendants' motions to transfer venue. And it was absolutely confirmed on September 12, 2012, when the plaintiff stipulated to dismissal of its claims against East Side Ovens. By that point, the venue issues were done, and the case had been transfered to Chicago for trial in front of Judge Posner. So there was no longer any need to keep the tiny bakery over the coals.

Posner, Posner, Posner, Posner

One of the common criticisms of this blog is that we spend too much time talking about Wisconsin. If you scroll down and look at the "labels" section on the right, you'll see that we've labeled over 40 posts with the "Wisconsin" tag, even though this is ostensibly a law blog and neither us regularly practices law there (although Mr. Gillette is a member of the Wisconsin bar, I believe, and both of us spent our formative years living there).

This is all preface to pointing out that we have a strange new obsession: Judge Richard Posner. I suppose it makes some sense; after all, we did sort of steal the title of his blog.

So, two notes to keep the obsession going:

Update on the Case of the Infringing Cookies

Last September I posted about a patent infringement lawsuit filed against many large, multi-national food companies ... and one tiny Milwaukee bakery:

"I think it's got to be a mistake somehow." 

That's what the owner of East Side Ovens, a small wholesale bakery in Milwaukee, said about being sued for patent infringement. The allegation? That the bakery infringes U.S. Patent No. 5,843,497 by using a certain "fat composition" in its cookies, "including, but not limited to, cookies sold as East Side Ovens Cranberry Orange Cookies." That's right -- we're talking infringing delectables here.

East Side Ovens is one of about a dozen defendants in all.  But the other nefarious sweet-secret swindlers are giant corporations such as Keebler, Pillsbury, and Néstle.  So why is plaintiff Willy Wonka GFA Brands (doing business as SmartBalance) going after this small fry?  Are the Cranberry Orange Cookies selling like hotcakes? No. Are they an example of a particularly egregious example of the alleged infringement? No -- the complaint implies that all of the defendants purchase the allegedly infringing ingredient from the same source (though it isn't clear what that source is).

No, East Side Ovens' sin is simply that it is based in Wisconsin.  It's almost certainly the case that the only reason they were added as a defendant was so that the plaintiffs could file the case in the Western District of Wisconsin—a famous "rocket docket" for patent cases—and withstand a motion to change venue filed by the big multinational defendants (all of whom, along with both plaintiffs, reside outside of Wisconsin).

Instead of answering the complaint, most of the defendants filed motions to dismiss, to sever (that is, try the cases against each defendant separately), and/or to transfer the case to a different venue.

Borat Swimsuit = Prior Art

Someone tried to patent the famous Borat swimsuit as a "scrotal support device," but the Patent Office rejected the application based on pictures of Sasha Baron Cohen wearing the "device":

Sometimes the system works, I guess.

H/t: IPWatchdog

"I think it's got to be a mistake somehow."

That's what the owner of East Side Ovens, a small wholesale bakery in Milwaukee, said about being sued for patent infringement. The allegation? That the bakery infringes U.S. Patent No. 5,843,497 by using a certain "fat composition" in its cookies, "including, but not limited to, cookies sold as East Side Ovens Cranberry Orange Cookies." That's right -- we're talking infringing delectables here.

East Side Ovens is one of about a dozen defendants in all.  But the other nefarious sweet-secret swindlers are giant corporations such as Keebler, Pillsbury, and Néstle.  So why is plaintiff Willy Wonka GFA Brands (doing business as SmartBalance) going after this small fry?  Are the Cranberry Orange Cookies selling like hotcakes? No. Are they an example of a particularly egregious example of the alleged infringement? No -- the complaint implies that all of the 

defendants purchase the allegedly infringing ingredient from the same source (though it isn't clear what that source is).

Jurisdictional jurisdiction

Have you ever wanted to shout at someone, "You're out of your jurisdiction!!"?  I have.  In fact, I've done it a couple of times.  In both cases, I was standing outside a bar speaking to a bouncer. 

Oddly, I was reminded of these moments today when I read the case of Warrior Sports Inc. v. Dickinson Wright, PLLC, which the Federal Circuit court of appeals decided yesterday.  It's a legal malpractice case stemming from a patent litigation that settled because the patent attorneys had failed to pay maintenance fees and therefore allowed the patent to lapse.  The main issue for the Federal Circuit was whether there was federal subject matter jurisdiction under 28 U.S.C. § 1338 (which gives federal courts the exclusive jurisdiction over cases "relating to patents")  even lthough this is fundamentally a state-law legal malpractice case.  The court's answer, ultimately, is yes:  there is federal jurisdiction because deciding the malpractice claim necessarily requires resolution of a substantial question of patent law. 

But before it gives this answer, the court entertains a kind of meta-jurisdictional question:  does it have jurisdiction to consider the jurisdictional question?  This is kind of wonky, but the Federal Circuit is a special, national appellate court with limited jurisdiction to hear only certain kinds of appeals--including appeals of cases arising under § 1338.  The appellee here argued that the Federal Circuit lacked appellate jurisdiction to decide the subject matter jurisdiction question because the district court had already decided that the case did not arise under § 1338.  Thus, according to the appellee, the case should have been appealed to the regional circuit court of appeals, not the Federal Circuit.

The Federal Circuit disagreed, noting that it would be an "absurd result" if the Federal Circuit lacked appellate jurisdiction to determine whether a district court correctly interpreted the statute governing patent jurisdiction, even though the Federal Circuit has exclusive jurisdiction over appeals involving substantive patent law.

So we can sleep well tonight knowing that the Federal Circuit does indeed have jurisdiction to adjudicate jurisdictional judgments concerning patents.