Veneerslicing
Half-round veneer slicing.

How does one cut wood veneer from a log?  With the half-round method, one slices the former tree into two "flitches", uses "dogs" to attach a flitch to a "staylog", and rotates the flitch on the staylog while a veneer knife slices off long, thin sheets of wood.

You probably already knew that.  But what do you do about the fact that trees — and therefore flitches — taper?  You use dogs of varying heights.  And so two different inventors, who sometimes collaborated, concluded at around the same time.  Each also filed patent applications claiming the same invention but at slightly different times.  Inventor No. 1 filed first.

Whose patent got priority?  The U.S. Patent and Trademark Office’s Board of Appeals and Interferences awarded priority to Inventor No. 2.  But in doing so the Board cited no evidence to support its conclusion that a person of ordinary skill in the flitches-and-dog art would have know how to practice the invention just by looking at two sketchy diagrams that Inventor No. 2 testified he showed to Inventor No. 1.  The Board instead used its own expertise in the area to conclude that Inventor No. 1 derived the invention from Inventor No. 2’s.

The Federal Circuit held that the Board overstepped its bounds in doing so.  The court found no proof of that an ordinarily skillful person would have known from gawking at the diagrams.  And it concluded that the Board couldn’t supply the missing evidence, which Inventor No. 2 had the burden of producing, by relying on its own knowledge of the art.  Brand v. Miller, No. 06-1419 (Fed. Cir. May 14, 2007).

Blawgletter won’t ask how the Board knew so much about veneer-slicing techniques.  But we do agree that Inventor No. 2 cut the evidence a little too thin.

Barry Barnett

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The Second Circuit today overturned summary judgment on claims to recover $69 million under an oral agreement.  The decision turned on whether eight promissory notes qualified as "securities" under New York’s version of the Uniform Commercial Code.  The New York Court of Appeals held that they did.  Because the New York U.C.C. abolishes the statute of frauds for pacts involving securities, the Second Circuit vacated the summary judgment in favor of defendants and remanded for further proceedings.  Highland Capital Mgmt. L.P. v. Schneider, No. 05-4729 (2d Cir. May 14, 2007).

Barry Barnett

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As we wait for the Federal Circuit to kill Vonage or revive it, Blawgletter noted that the company reported better results for its first quarter 2007.  Its press release notes that it added 166,000 subscribers (for a 2.4 million total) and lost fewer millions than it did in the same period last year.

And Vonage may wiggle out of its patent infringement troubles.  Thanks to the Supreme Court’s broader application of the "obviousness" doctrine in KSR v. Teleflex and the company’s own efforts to work around Verizon’s patents, Vonage could get a new trial, which it could conceivably win, or through self-help keep doing business even if it loses in court.  We almost can’t help but wish them luck.

Barry Barnett

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In patent law lingo, an "interference" pits two patents covering the same invention against each other.  The prize consists in getting the earlier "priority" date so that Patent A trumps Patent B.

In Henkel Corp. v. Procter & Gamble Co., No 06-1542 (Fed. Cir. May 11, 2007), the court reviewed a decision by the U.S. Patent & Trademark Office Board of Patent Appeals and Interferences to award Procter & Gamble’s patent priority over Henkel’s.  The invention concerned dishwashing detergent tablets that feature two regions with different dissolving speeds.  The Board held that the Henkel inventor’s earlier creation of such a wondrous tablet didn’t count because he didn’t have the folks in the lab measure the relative dissolving times.  The Federal Circuit disagreed, holding that "appreciating" what the Henkel inventor invented didn’t require precise determination of how fast each part of the tablet melted, only that one melted at a "greater" rate than the other.

Barry Barnett

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The Ninth Circuit agreed today with 10 of its sister circuits on the question of whether mere "inquiry notice" of possible fraud starts the statute of limitations period running for purposes of a securities fraud claim:  It does.  Betz v. Trainer Wortham & Co., Inc., No. 05-15704 (9th Cir. May 11, 2007).

But the court also found a silver lining for plaintiffs in the tougher scienter (intent to defraud) standard that they face under the Private Securities Litigation Reform Act.  Before inquiry notice arises, the court held, the plaintiff must have facts suggesting likely intent to fraud.  Not even learning about a "serious problem" with the plaintiff’s investment account would have triggered sufficient suspicion of the broker’s intent to defraud, the court concluded, reversing summary judgment against the plaintiff Betz.

Barry Barnett

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Clinkerkiln
A rotary clinker kiln.

The Fifth Circuit today upheld a district court’s construction of a business interruption policy against the insurer, holding that ambiguity in policy language about how to calculate the deductible still indeed favors the policy holder.  The dispute arose from damage to a kiln that grinds "clinker" — a key ingredient of cement.  The fight focused on the meaning of "15 Day’s Value Time Element of the Objects Experiencing the Loss or Damage."  Blawgletter won’t test your patience by laying out the competing arguments but will simply say that the insurer came up with a formula that would have let it totally off the hook.  Texas Industries, Inc. v. Factory Mut. Ins. Co., No 06-10681 (5th Cir. May 11, 2007) (applying Texas law).

Imagine that.

Barry Barnett

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Today, the Seventh Circuit affirmed summary judgment against an automobile manufacturer that tried to compel a dealer to arbitrate their dispute under a contract that expired before the dispute arose.  Nissan argued that the parties’ continuing to do business after contract expiration somehow revived the arbitration clause in the contract.  The district court didn’t buy it, and neither did the Seventh Circuit.  Nissan N. Am., Inc. v. Jim M’Lady Oldsmobile, Inc. , No. 05-1786 (7th Cir. May 11, 2007).

Barry Barnett

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Vonage reported progress today on working around two of the three Verizon patents that a jury earlier this year found Vonage to have infringed.  The first two patents concern "voice translation" and the third involves wireless telephones, which Vonage says fewer than 10 percent of its customers use.  According to the company’s press release:

Jeffrey Citron, Vonage Chairman, said, "We have battled through an extremely difficult quarter and will continue the fight in the courtroom. While the patent litigation has challenged our business, it has not distracted our focus on providing consumers with the opportunity to choose a better phone service.

"We believe we have workable designs for the two name translation patents and intend to begin deploying the solution to our customers shortly. In addition, we are continuing our development of the workaround for the wireless patent."

Barry Barnett

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The Sixth Circuit today upheld a summary judgment for a drug manufacturer on a claim, under Sherman Act section 2, that the manufacturer parlayed a program for increasing its market share into a price increase on Premarin, its estrogen replacement drug.  The monopolization claim failed, the court concluded, because plaintiffs didn’t present evidence that the anticompetitive conduct (forcing customers not to buy a competing drug) caused the price rise.  J.B.D.L. Corp. v. Wyeth-Ayerst Laboratories, Inc., Nos. 05-3860 & 05-3988 (6th Cir. May 10, 2007).

Barry Barnett

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Johnharvardstatue
John Harvard — with a garland briefer than a girl’s.

The NYT just reported what we all knew — that Harvard does a piss poor job of teaching the bright (and often brilliant) 18-year-olds who decide to spend four undergraduate years in Cambridge.  And, as a task force disclosed in January, some of the Cantabs want to change, not least by emphasizing professorial pedagogy as much as research. 

Well, duh.  In Blawgletter’s experience, Harvard College does indeed attract teenage savants but does little to mold them into adults who comfortably tolerate other mortals.  Yale and, to less extent, Princeton do a much better job.  Well, duh.

Blawgletter should know.  Email us if you’d like to hear why.  Meanwhile, please take our word for it.

Barry Barnett

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