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Judge Makes Lawyers Pay For Frivolous Patent Suit
Gallenod writes "The Denver Post is reporting that the U.S. 10th Circuit Court of Appeals has upheld the decision of a Federal judge who threw out and reversed a jury decision in favor of a patent infringement claim and ordered the plaintiff's lawyers to pay the defendants' court costs. U.S. District Senior Judge Richard P. Matsch sanctioned the plaintiff's attorneys for 'cavalier and abusive' misconduct and for having a 'what can I get away with?' attitude during a 13-day patent infringement trial in Denver. With the Appeals Court in agreement, could this case be the 'shot heard round the world' in the revolution against patent trolls?"
If this is held up through appeals, will radically change the very nature of lawsuits, and not necessarily for the better. Imagine the little record label suing Sony for re-listing their catelog without permission, and Sony simply out-spends them, then forces them out of business by having them pay for the legal costs?
Karma Whoring for Fun and Profit.
So why did the judge reverse? I always thought that the Jury was the "trier of fact".
Aha, first post?
Beer is proof that God loves us and wants us to be happy.
...if dumb lawsuits slowly disappear, where will I get my humor from on /.?
I never thought this one would stand up to appeal...The judge threw out the jury verdict and then made the plaintiff pay the court costs. Read that again: he threw out the jury verdict.
And the appeals court backed him up! Holy crap! I guess that's one way to deal with stupid juries and slick lawyers...Get some decent judges who aren't willing to put up with the crap.
ad logicam Claiming a proposition is false because it was presented as the conclusion of a fallacious argument.
Is that you? We've missed you!
And the masses cried out, "09 F9 11 02 9D 74 E3 5B D8 41 56 C5 63 56 88 C0!"
Frivolous cases, of all kinds, are often struck down with costs. No reason to think this will have any significant impact on patents, any more than on other laws.
Engineering is the art of compromise.
Law is a slow beast to change, by design. Technology will advance much faster then Law. As a result, we'll continue to see issues like the one we face with "patent infringement". But, Law does eventually change to correct itself. I'm relieved to see that things are working as they should.
As long as the 21st Amendment doesn't get infringed upon. No one cares about the others.
riding round the world on an old motorcycle
Whenever a cavalier S.O.B. gets kicked square in the nuts there should be much rejoicing.
Reading the article (gasp!) left me with the impression that the Judge was ticked off because of the attorney's behavior and method of prosecuting their case and not that the Judge thought the patents were bogus. It's as if the plaintiff is getting nailed because it hired a pair of SOB's to press its case.
Perhaps there's a clearer report out there?
...you insensitive clod!
Weaselmancer
rediculous.
The article notes that the technology here is for guiding scalpels to do precision work on brain tumors, so the subject matter is highly technical in nature. I'd like to see what the actual patents involved are before making a judgment. This case might have come down to the (apparently off the wall) behavior of the lawyers, even if the plaintiff may have had a legitimate case.
One thing you have to remember is that (with rare exceptions) the court is only going to go with the arguments that each side presents. It is not the judge's or jury's job to go out and collect evidence and make up a decision, it is instead their job to decide the case based on the evidence actually submitted and arguments actually made by opposing parties (this is called the "adversarial system"). Even if the plaintiff may have had a case, if these lawyers went out and did a completely shitty job of presenting it, presented no real evidence, and made no real legal arguments, then they can and will lose the case. The extra sanctions here are quite unusual, and go beyond the negative consequences of just not doing a good job of lawyering. I think that these "respected litigators" were probably ignoring the judge's instructions and committing other infractions that REALLY pissed the judge off. On appeal, the court does NOT hear new facts, so the appeals court went with the factual record and judgment of the District Court judge on this one.
AntiFA: An abbreviation for Anti First Amendment.
Judge Matsch was the presiding judge at Timothy McVeigh's trial, if anyone remembers.
12:50 - press return.
Patent Trolls have fast healing 7... the judge tried using some acid to make sure it stayed down but I'm not sure...
"Waste not one watt!" - CZ
But, this is Slashdot, guilty as charged...
If you want news from today, you have to come back tomorrow.
Anon cow forgets that the Federal United States is a different entity than the several states u.s. The constitution applys to the several states.
Translation: once you step foot on federal ground (courthouse,military base,atomic test sites,U.S.highways,etc.) your constitutional rights are more like constitutional favors you are granted if they feel like it. Other ways you are wangled out of your rights are by having a Federal address on your house(for reasons of recieving mail from Federal Post Office, signing documents whose fine print makes you subservient to Federal regulation, etc.)In other words Your constitutional rights were lost long ago by sneaky legislation hidden in history and enacted for the convenience of the Federal Government.
Many may disagree but will find that it explains the carte blanche the Fed takes with regards to things like wiretapping,income taxes,national debt. and other things that nothing ever gets done about and even the press blindly accept now.Anyone who speaks up is instantly just a nut job and taken for granted because after all,"whoever heard of such a thing? They never taught us anything like that in (Federally funded)school! We are a Democracy(only since the last century) and pay our fair share of taxes(also from the same time frame) .
*Repent!Quit Your Job!Slack Off!The World Ends Tomorrow and You May Die!
This is great because the earlier article entitled "Apple, Starbucks Sued Over Music Gift Cards" concerns a Utah couple (they are both attorneys) who presumably brought their patent suit in Utah, which is a part of the 10th Circuit. All of which means they should have known better.
We willna be fooled again!
Me make fun of illiterate editors
mcgrew's razor: Never attribute to stupidity that which can be explained by greedy self-interest
"could this case be the 'shot heard round the world' in the revolution against patent trolls?"
Not until/unless (take your pick) US legal jurisdiction extends round the world - on an official level!
AT&ROFLMAO
Yes, so it is who used the words, "out there?" Qualitatively speaking. And out there may be "in there," as far as we are concerned, and on many other occasion, "right on."
Anyone seen my jagged little pill?
United States District Court,
D. Colorado.
MEDTRONIC NAVIGATION, INC., Medtronic Sofamor Danek, Inc., Sofamor Danek Holdings, Inc., St. Louis University, and Trustees of Dartmouth College, Plaintiffs,
v.
BRAINLAB MEDIZINISCHE COMPUTERSYSTEMS GMBH, Brainlab AG, Brainlab USA, Inc., and Brainlab, Inc., Defendants.
Civil Action No. 98-cv-01072-RPM.
Feb. 12, 2008.
Anthony Lawrence Giacomini, Sean Connelly, Daniel M. Reilly, Hoffman, Reilly, Pozner & Williamson, L.L.P., Conor Fitzgerald Farley, Lee Frederick Johnston, Holland & Hart, LLP, Denver, CO, J. James Li, Vera M. Elson, McDermott Will & Emery, LLP, Palo Alto, CA, Krista Leigh Vink Venegas, McDermott, Will & Emery, Los Angeles, CA, Kurt A. Luther, Leslie I. Bookoff, Finnegan, Henderson, Farabow Garrett & Dunner, Washington, DC, David W. Harlan, Senniger Powers, St. Louis, MO, for Plaintiffs.
James Edward Hartley, Holland & Hart, LLP, Denver, CO.
Jay R. Campbell, John J. Del Col, Joshua M. Ryland, Renner, Otto, Boisselle & Sklar, LLP, Kyle B. Fleming, Cleveland, OH, L. Andrew Cooper, Marc David Flink, Thomas H. Shunk, Baker & Hostetler, Denver, CO, for Defendants.
ORDER FOR AWARD OF ATTORNEY FEES AND COSTS TO BRAINLAB DEFENDANTS
RICHARD P. MATSCH, Senior District Judge.
*1 The defendants (collectively BrainLAB) seek to recover all of their attorney fees and costs incurred in the defense of this suit for patent infringement, contending that it was filed and prosecuted not to protect the technology protected by the patent claims but to drive a competitor out of a market for an emerging technology for application in the navigation of surgical instruments in procedures requiring exquisite precision, as in the removal of a brain tumor. Medtronic Navigation, Inc. (Medtronic) and its predecessor Surgical Navigation Technologies, Inc. (SNT) marketed variations of a device called "StealthStation" in competition with BrainLAB's "VectorVision" devices. The accused devices can be described as passive optical systems in contrast to an active acoustic system. That contrasting technology was at the core of this case.
BrainLAB contends that it is entitled to fees and costs because this is an exceptional case justifying relief under 35 U.S.C. 285; that plaintiffs' lead counsel should be held responsible under 28 U.S.C. 1927 and that the Court should grant the motion in the exercise of its inherent authority to protect the integrity of the processes of adjudication. Upon reflection, this Court finds and concludes that the rulings on the claims construction issues adjudicated the fairly debatable issues in this case and that the manner in which plaintiffs' counsel continued the prosecution of the claims through trial was in disregard of their obligations as officers of the court. The fairness of the adversary system of adjudication depends upon the assumption that trial lawyers will temper zealous advocacy of their client's cause with an objective assessment of its merit and be candid in presenting it to the court and to opposing counsel. When that assumption has been contradicted by a trial record of conduct reflecting a winning is all that is important approach to the trial process, the court has a duty to redress this resulting harm to the opposing party.
BrainLAB has made a plausible argument that this entire civil action was frivolous. The chronology of the suit must be viewed against the backdrop of developments in the field of image-guided surgical navigation technology.
In approximately 1991, SNT began development of an image-guided surgical navigation product. SNT worked with Dr. Richard Bucholz of St. Louis University. SNT also collaborated with Dr. Peter Heilbrun of the University of Utah. In 1994, SNT obtained rights to the application for patent that issued as U.S. Patent No. B1 5,383,454 to Bucholz (the 454 Patent or the Bucholz Patent). The claims of that patent relate to a system that depends on the activation of sound emitters on a surgical instrument and the pati
If someone says he and his monkey have nothing to hide, they almost certainly do.
Simply put, no.
"After the court issued its claim construction rulings, Medtronic's counsel proceeded cavalierly, with reckless indifference to the merits of Medtronic's infringement claims," Matsch wrote."
"Matsch said the McDermott lawyers willfully ignored his rulings on claim construction in their arguments before a Colorado jury in 2005. In patent cases, those orders define the scope of the patents and, therefore, what the plaintiff's lawyers can argue for infringement."
"The judge said in his Tuesday ruling that while McDermott paid lip service to the orders, the lawyers improperly pointed the jury toward Medtronic's broad reading of the patents. McMahon also made comparisons of the two companies' products, the StealthStation and VectorVision, instead of comparing Medtronic's patents to BrainLAB's product, "contrary to established law," Matsch wrote."
Summary for lawyers
In the anatomy of the typical patent case, there is
1. The filing of a suit
2. Discovery
3. A so-called "Markman hearing" to resolve disputes between the litigants as to the meaning of disputed terms or phrases within the patent claims
4. Summary judgment motions
5. A trial (bench or jury)
6. Post-verdict motions
7. Appeal
If you read through the judge's ruling, or even the law.com article, it's apparent that the judge believed that the trial was unnecessary, and that the case could and should have been resolved by summary judgment (and any subsequent appeal). If the case had ended at this point, there would likely be no talk of sanctions or the like. Therefore the answer to the question at the end of the summary is no.
All the rest relates to the judge's determination that 1. the platintiff's attorneys misrepresented the state of the case in their briefs opposing the motions for summary judgment that would have ended the trial phase and 2. the plaintiff's attorneys disregarded both his rulings in case and unequivocable legal standards for what does and does not constitute patent infringement.
To use bad sports analogies, this ruling is the red card or the technical foul called on the field, not a warning that the team should never have attempted to play the game.
The judge should have been able to set against the frivolous lawyers a "strike" that would add up towards disbarment if they did it again. Given repeated frivolity found by courts, lawyers should get a warning, a fine, a suspension and finally disbarment as the strikes accumulate over time, perhaps resetting once a year or 5 or 10 or 20 if not repeated. Perhaps several strikes assigned at once when the frivolity is really serious and the judge wants to push them towards disbarment, or out completely.
Then lawyers will be a lot more careful about flooding the courts with these worthless cases just because they have nothing better to do (and the client pays). That's their sworn job anyway, as "officers of the court", but they don't honor that oath without teeth when they break it - they're lawyers. And for those who see good cases get rejected just because they're not open/shut for lazy lawyers, that kind of refusal is also grounds for suing lawyers; suits in which the judges typically look very critically on the lawyers who should be staying out of trouble. Maybe that counterbalance needs stronger teeth, too, but there's certainly plenty of ways to get these lawyers to respect the merits of a case, whether trying or refusing it.
--
make install -not war
Be careful what you wish for. Don't be blinded by the subject to not see that the Judge overturned the juror's decision. It makes me think that the jury was un-needed? But, the jury box is our(we) "the peoples" final test of laws and there justness.
If anyone fits the bill of useless waster of Judicial time, it's Jack Thompson. I think that EA might have unleashed him on Take Two to soften them up for a takeover.
(just kidding)
Still there is proof he is useless http://en.wikipedia.org/wiki/Jack_Thompson_(attorney)
Sorry about the writing. Robot fingers, you know? Cliff Steele in DOOM PATROL #23
Why you make fun of article? Hulk work hard on article! Not easy. Many long words. Hulk hands big, computer keys tiny!
It seems that these patent trolls didn't know enough to sue in Marshall, Texas, where all the professionals go.
Now, where's my violin?
Ibid.
If we had "loser pays" for all civil cases the certain result would be that only rich people and companies could sue anyone.
Average Joe: I want to sue MegaFoodCorp.
Lawyer: Why?
Average Joe: There was glass in the food I bought from them. It severally cut my throat and stomach, I had to be rushed to hospital for surgery. I missed 3 weeks of work and lost my job. Now I have $80,000 hospital bill that I can't pay. Also since I lost my job my house is in forclosure and my wife left me.
Lawyer: They will spend at least a million bucks defending themselves. Since we have a loser-pays system in this state, you'll need to put a million dollars in escrow just in case we lose. But it sounds like you have no money. Too bad. Sucks to be you.
I just wanted to add something based on a comment in that story, though it may be directly applicable to this particular case.
The comment had to do with some other case, over the law of adverse possession (which I believe is just another way saying squating). He said in that case the just was just doing his job, and judging based on the law.
Well that's not entirely correct. Yes, a judges job is to know the law and try to decide if one has been broken or not. And the judge can overide the jury if he chooses. But a judge (and the jury) can also decide to rule in a way disregarding the law at hand, if they believe the law to be wrong. That's one of the important powers of the judicial system and its how laws can get changed.
In the case of current patent law, its probably going to take more cases like this where the law is disregarded and the jury or judge rule in favor of common sense before our patent system has a chance of being reformed..
-- Senior Software Engineer, Attorney appearance services, locallawyerapp.com.
I'm glad I'm not the only one who noticed that the article appears to be edited by Cookie Monster.
-Arthur
Cave ne ante ullas catapultas ambules
Where does that leave jury nullification? In that situation the jury is explicitly judging the law itself to be unjust. That wasn't the case in this trial, but such a practice would seem to nullify nullification.
Cow Cube
Only if they heard it loud and clear in Marshal, Texas.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
http://www.denverpost.com/popular/ci_8354619
http://findarticles.com/p/articles/mi_m0EIN/is_2007_Dec_31/ai_n21176158
http://finance.google.com/finance?q=NYSE:MDT&morenews=10&rating=1&origin=71
Probably baaad news for Medtronic?
They might need to sign up for voluntary procedure at or products from Medasonic.
http://www.cja-jca.org/cgi/reprint/41/4/281.pdf
Maybe Judge Matsch's ruling see inCubation in courtrooms, and maybe the standing ruling will cause need for inTubation in shyster lawyers?
Remember Mr. Mudd, and the saying that followed his demise (your name will be MUD)? Maybe Judge Matsch will be famous for slaying corrupt patent lawyers... The headlines will read:
Cross THIS judge and you will be MATSCHED Out of Practice"
Previously: "Linux... Toward the Sunrise..." Now: "Linux... Toward the-- No, now, part of Every Sunrise"
I'm going to go out on a limb here. I've never hired a lawyer, but I would expect each client to sign a contract. I mean, these are lawyers we're talking about here! It would be very easy for a slick lawyer to include a clause placing responsibility for this payment on the client.
Again, I suspect the client will wind-up paying it anyway!
I won't join Slashcott. OTOH, If Beta goes live, I just won't be back until it's fixed. Sorry Dice.
Because the trial judge blew it. The lawyers were pushing the lines as hard as they could, and the trial judge didn't stop them. On the appeal, the lawyers basically said, "Hey, it's the judges job to stop us, and he didn't." So the appeals court overturned the trial verdict, because the trial verdict is invalid if the judge doesn't enforce the rules as to what the jury gets to hear. And the appeals court slammed the lawyers, because they knew what the lines were and stomped all over them anyway, just because the judge let them. The appeals court doesn't think that's acceptable, even if the trial judge lets it slide.
All in all: Good for the appeals court!
Note well: IANAL. This is just my opinion, based on reading the ABA summary.
Generally, when I watch combat or similar films/movies, I too don't want to be bothered by scenes of sex. When I was younger, I'd rail against it or just brood. Nowadays, I just zone through it and think of something else for the 30 or 55 seconds of frivolous sex.
However, even in peace or just maneuvers, there will be sex.
When I was in high school JROTC our unit, along with other schools' units from all around the state, went to an army base for various training for about 5 days. 2 days into it we were on SERE (Survival Escape, Resistance & Evasion) maneuvers at night. One student from one unit had an attraction to a girl from another school's unit. (There were some 20-30 different squads, mixed up so we wouldn't be with our own classmates...)
Being the squad leader, he ordered us to hold fast after the starburts went off and we were close to being discovered. At one point, regular US army troops walked RIGHT OVER us in ankle-deep grass, just like in the movies. We were glad we weren't detected. But, at another point, the squad leader had us maintain location while he went off to bang the girl who was waiting for him. Unlike movies I'd seen.
That was just one of those "Truth is stranger than fiction" moments. But, now, I can't remember if that was Camp Bullis in Tx, or Fort Ord, but it was 81/82 or 82/83 for me.
Previously: "Linux... Toward the Sunrise..." Now: "Linux... Toward the-- No, now, part of Every Sunrise"
I'd say for the first offense, a day in stocks would be appropriate. For the second, hanging, drawing, and quartering.
You'd see frivolous cases go away in a big hurry.
The plaintiff's lawyers are being ordered to pay, not the plaintiff.
So, roughly speaking, if we figure both sides spent about the same amount of time on the case, the plaintiff's lawyers, every once in a while, have to break even (+/- staff attorneys salaries, but small compared with billed rates). At the same time, the defendant's lawyers did just fine, and one would expect the burden to shift around over time.
It doesn't look like it pays to get out of this business.
My God, it's Full of Source!
OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
Due to the specifics of this case, it will not be usable as a broad sword to derail patent trolls.
It will, however, eviscerate all the lawyer shows on TV; good lawyering is pretty dull to watch unless you're a lawyer.
Would an iPoop make an iPlop?
So you're telling me that the number of people killed by Christians during the Crusades is not significant?
More blood has been shed in the name of forcing one's views on others over the course of history than any plague, famine or natural disaster. Theistic religions are not the only guilty parties in this regard, but their hands are still quite bloody. One reason that "godless" regimes such as the Third Reich and Communist nations such as the USSR and China attempted to eradicate religion was the "undue influence" religion had on the actions of the populace. Conversely, we have the conflict in the Middle East not only between Muslims and Jews, but between various Muslim sects. Never mind the fact that on the one hand people in the US (where I was born and raised, and still reside) who think a religious government in Iraq would be bad but have a President of the United States who is not a devout Christian would be a harbinger of the end of the world. As long as there is intolerance of any kind, or a desire to push one's views as more "right" than someone else's, there will be conflict and there will be bloodshed.
And under copyright law (which governs things like movies), re-selling a derivative work (such as a clean edit) without explicit permission of the copyright holder is illegal. You have no "right" to purchase any form of a movie than those which are sold by the copyright holder or by someone who has been given explicit permission to sell their particular version of the movie. If you knowingly purchase a movie that has been edited and resold in violation of copyright law because you do not wish to see material that offends you, you are a thief (for abetting someone else's efforts to steal the original copyright holder's IP) and a hypocrite (for rationalizing that theft in the name of your beliefs). That ANYONE would be offended by the raw display of love that is made more urgent by the very real possibility that one might die in the near future to the point that they could not watch that scene, and yet not be offended by the even more graphic representation of death, bloodshed and human suffering that dominates the rest of the movie is positively gut wrenching. It is indicative of a society that has lost all sense of proportion, along with its soul.
People much wiser than I am said, "I'd rather have my son watch a film with 2 people making love than 2 people trying to kill one another. I, of course, can agree. It is a great sentence. I wish I knew who said it first. - George Carlin
-- daecabhir (this mind intentionally left blank)
Here's an example of clean Slashdot post edits. I've removed the morally objectionable content from your post. Of course, you don't mind, right?
What's so cool about morally objectionable content from movies?
For example, I like the Matrix trilogy, there is a completely necessary sex scene in the second movie. I force all who would wish to watch the movie to view that scene? Even glimpses requires good timing or a quick back-wind to resume the movie after the scene.
Many movies are like this. I want to see a movie with what many consider objectionable material, why are movie studios fighting this?
More to the point, air movies on TV.
Prohibiting things like this does nothing but reduce movie studios' monetary gains. I, for one, see movies that have objectionable material anyway.
I'm saying that someone should be able to buy one copy of a DVD and sell dozens or hundreds of burned copies.
Want to improve your Karma? Instead of "Post Anonymously", try the "Post Humously" option.
Their implementation of a poll is sheer genius, I do hope they got a patent on that too!
The great thing about it? It's trivial to vote multiple times, even though you have to be logged in to vote. Just open the frame which contains the poll in a new window, submit the poll and reload, reload reload...
More blatant fun? Write a few lines of Perl that logs you in and submits the poll, say a few thousand times. For your added convenience they made the vote a GET instead of a POST.
Remember: it's a feature, not a bug!
You can edit the DVD in your home and produce your own copy for your family -- just like you can remix music compilations under Fair Use privileges.
What isn't ok, is a large mega-corp producing their own "edited" version, where they might change dialogue, (or add dialogue), cut scenes out, etc. The problem is that once you allow that, viewers in a "captive market" (Utah, Blockbuster) are shut out of the rental market because the only video store in town is a BB. Would it be "equally ok" for a state to declare certain scenes as "pornographic", and require the removal of such scenes in order for the movie to be "rented" or "let" out in the state? Local standards are supposedly applicable in deciding obscenity cases. Suppose your "locality" wants to have only "clean" movies? Suppose someone "cleans" your movies for you and you aren't even aware of it (this was happening until it was stopped)? Allowing commercial vendors to vend or rent "cleaned" movies is a bad idea for artistic expression and freedom.
Otherwise they were guilty in their actions. Even if they can show that the client told them to do this, as members of the court, they should have refused and they themselves were partially or entirely at fault for enacting it.
I can ask a policeman to ticket someone for no damn reason but if the police officer does it, that isn't my responsibility: the policeman acted incorrectly.
Same here.
> I don't care whether you find the sex scene objectionable or not. Copyright law does not have an exception to the "derivative works" clause that allows for such modifications.
So, do you use an ad blocker? How is that different, except that you hate their religion and think they're evil for blocking T&A? You know that the technology didn't make actual copies, it just skipped certain bits, right? Not unlike a DVR that removes commercials?
Or do you believe that content producers have a right to an audience? If so, wait while I make a program to recite as much of pi as is possible before the computer it's running on dies.
Don't you DARE skip a digit...