The patent-in-suit concerned slot machines.

The Federal Circuit held today that, in patent lingo, "comprised of" generally means the same thing as "comprising" — "including but not limited to".  The term doesn’t signify "consisting of", which implies the whole of a thing’s composition.  Thus, the United States comprises the South and the Midwest but consists of all 50 states.  CIAS, Inc. v. Alliance Gaming Corp., No. 06-1342 (Fed. Cir. Sept. 27, 2007).

The distinction didn’t matter.  The court affirmed summary judgment of noninfringement anyway.

Barry Barnett

Our feed speaks patent-tongue.

The wheeler-dealers of Wall Street and private equity lately have hit the brakes.  Buy-out deals with Harman International and, as we learned just today, SLM Corporation (Sallie Mae) have screeched to a halt.  The cold feet purchasers cite "Material Adverse Effect" provisions that allow them, in some circumstances, to terminate the acquisition agreement.

We love reading recondite language congoing across a page as much as the next lawyer who specializes in understanding the words just enough to interpret them for judges and juries.  But we wouldn’t think of depriving you, gentle reader, the pleasure of seeing the raw text.  And, so, we offer for your enjoyment the definition of MAE in the SLM agreement:

“Material Adverse Effect” means a material adverse effect on the financial condition, business, or results of operations of the Company and its Subsidiaries, taken as a whole, except to the extent any such effect results from: (a) changes in GAAP or changes in regulatory accounting requirements applicable to any industry in which the Company or any of its Subsidiaries operate; (b) changes in Applicable Law (provided that, for purposes of this definition, “changes in Applicable Law” shall not include any changes in Applicable Law relating specifically to the education finance industry that are in the aggregate more adverse to the Company and its Subsidiaries, taken as a whole, than the legislative and budget proposals described under the heading “Recent Developments” in the Company 10-K, in each case in the form proposed publicly as of the date of the Company 10-K) or interpretations thereof by any Governmental Authority; (c) changes in global, national or regional political conditions (including the outbreak of war or acts of terrorism) or in general economic, business, regulatory, political or market conditions or in national or global financial markets; provided that such changes do not disproportionately affect the Company relative to similarly sized financial services companies and provided that this exception shall not include changes excluded from clause (b) of this definition pursuant to the proviso contained therein; (d) any proposed law, rule or regulation, or any proposed amendment to any existing law, rule or regulation, in each case affecting the Company or any of its Subsidiaries and not enacted into law prior to the Closing Date; (e) changes affecting the financial services industry generally; provided that such changes do not disproportionately affect the Company relative to similarly sized financial services companies and provided that this exception shall not include changes excluded from clause (b) of this definition pursuant to the proviso contained therein; (f) public disclosure of this Agreement or the transactions contemplated hereby, including the initiation of litigation by any Person with respect to this Agreement; (g) any change in the debt ratings of the Company or any debt securities of the Company or any of its Subsidiaries in and of itself (it being agreed that this exception does not cover the underlying reason for such change, except to the extent such reason is within the scope of any other exception within this definition); (h) any actions taken (or omitted to be taken) at the written request of Parent; or (i) any action taken by the Company, or which the Company causes to be taken by any of its Subsidiaries, in each case which is required pursuant to this Agreement.

Barry Barnett

Boom chaka laka laka.

Judge Smails warns the groundskeeper about gophers.

Blawgletter thought little of an op-ed title that appeared a couple days ago in the WSJ — "Contingency-Fee Con-Men".  It seemed par for the course.  But the text so distracted us that we hit a towering slice.  We triple-bogeyed the hole.

The gist went like this:

Client hires Lawyer on contingent fee.  Lawyer negotiates settlement.  Defendant later agrees to pay additional bonus to Lawyer, who refuses to split it with Client.

Can you spot the problem?  Does it involve Lawyer, er, breaking his contract?  Or do you worry that the Lawyer asked for a bonus only after settling Client’s case?

That second concern didn’t jump out at us either, but it fairly obsessed the op-ed author.  He seemed to think that people do such things in the real world — that actual defendants make binding settlements and then — apparently out of the goodness of their black corporate hearts — spread more monetary cheer directly to the plaintiffs’ lawyers.

Where do these people come from?  You have to ask?

Yes, they lurk the halls of the legal academy.  And we would make a large bet that none has ever represented any client on a contingent fee basis.

We do see an ethical worry about simultaneously negotiating a settlement and a fee in class action cases.  But we’ve never seen that happen, and Mr. Professor glosses over the sequence issue.  In our experience, the parties agree on the settlement and paper it.  The deal does not depend on whether the parties also agree on an attorneys’ fee award.  On the contrary, the papers provide just the opposite.  So we have a hard time seeing how such an arrangement "beyond cavil" violates ethical rules.

In truth, writers of such opinion pieces don’t like contingent fees at all.  (This author actually argues, for example, that the mere act of suing a tobacco company guarantees the lawyer at least a billion dollar fee.)  The more restrictions, the greater and more time-consuming the scrutiny, and the more risk to the plaintiffs’ lawyers, the more they like it.  They don’t want to reform contingent fees — they want to regulate them out of existence. 

Fore!

Barry Barnett

Our feed keeps its opinions to itself.

The Third Circuit today upheld dismissal of a complaint alleging that ERISA plan fiduciaries breached their duties of prudence and disclosure by allowing participants to continue investing in their employer’s stock.  The court concluded that the factual allegations didn’t support the conclusion that the fiduciaries abused their discretion in keeping Avaya stock as an investment option.  It also decided that warnings about the riskiness of putting all one’s eggs in one basket defeated the non-disclosure claim.  Edgar v. Avaya, Inc., No. 06-2770 (3d Cir. Sept. 26, 2007).

Barry Barnett

Our feed likes green eggs and ham.

Acting pretty durn fast, the Federal Circuit today decided Vonage’s appeal from a verdict and judgment in favor of Verizon on patents relating to Internet voice telephony.  The Court appears to have upheld most of the district court’s decisions but overturned findings relating to one patent and kicked the damages and future royalties award.  Verizon Services Corp. v. Vonage Holdings Corp., No. 07-1240 (Fed. Cir. Sept. 26, 2007).

Barry Barnett

Get our feed — over the Internet.

A federal jury in Kansas City yesterday found that Vonage infringed a Sprint Nextel patent on Internet phone calls and ordered it to pay $69.5 million.  WSJ story here.  Vonage suffered a similar verdict earlier this year at the hands of Verizon.  See Bon Vonage.

Speaking of verdicts in intellectual property cases, Blawgletter partners Max Tribble and Joe Grinstein brought one home yesterday for client UniRAM Technology.  The case against Taiwan Semiconductor Manufacturing alleged misappropriation of trade secrets relating to UniRAM’s "embedded DRAM" technology.  The federal jury in San Francisco awarded $30.5 million in damages.

Barry Barnett

Our feed accesses dynamically random memory.

Per the WSJ, the Supreme Court today granted certiorari to decide "whether a patent holder can seek royalties from multiple companies as a patented product works its way through the manufacturing process."  Quanta Computer, Inc. v. LG Electronics, Inc., 2007 WL 2768020 (U.S. Sept. 25, 2007).   Specifically, the cert. petition asks:

Whether the Federal Circuit erred by holding, in conflict with decisions of this Court and other courts of appeals, thatr respondent’s patent rights were not exhausted by its license agreement with Intel Corporation, and Intel’s subsequent sale of product under the license to petitioners.

On April 16, 2007, the Court invited briefing in the case from the Solicitor General.  See Quanta Computer, Inc. v. LG Electronics, Inc., 127 S. Ct. 2087 (U.S. 2007).

Barry Barnett

Our feed generates exhaust yet has a zero carbon footprint.

Columbia University President (and lawyer) Lee C. Bollinger yesterday concluded his remarks about, and to, Iranian President Mahmoud Ahmadinejad with these words:

I am only a professor, who is also a university president, and today I feel all the weight of the modern civilized world yearning to express the revulsion at what you stand for.  I only wish I could do better.

Read the rest here.

Barry Barnett

Our feed wishes Mr. Ahmadinejad a safe journey to the ninth circle of hell.