The Supreme Court of Delaware today reversed a court of chancery order that dismissed a case because a party failed to hire counsel who would commit not to seek withdrawal under any circumstances.  The trial court berated the plaintiffs for their "torpor" and "inexcusable torpor" in prosecuting their derivative case.  And, in grudgingly granting their original counsel’s motion to withdraw, the court threatened to dismiss the action with prejudice unless plaintiffs secured replacement counsel willing to make a "nonwithdrawable appearance."  The Supreme Court sympathized with the trial court’s frustration but held that ethical rules require lawyers to withdraw under some circumstances and that therefore the trial court erred in requiring new counsel to appear on a nonwithdrawable basis.  Parfi Holding AB v. Mirror Image Internet, Inc., No. 344, 2006 (Del. May 9, 2007).

The case appears to have involved — ahem — difficult clients, and the lawyers who withdrew no doubt felt great joy in their release from captivity.  Which raises the question of why anybody would want to take their place, even if they could withdraw.

Blawgletter likes the word "torpor", by the way.  Wikipedia defines it as "a state of regulated hypothermia in an endotherm" — sorta like what bears go through when they hibernate.  Try to work it into conversation.  Torpor.

Barry Barnett

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For the first time since the Supreme Court handed down KSR Int’l Co. v. Teleflex, Inc., No. 04-1350 (U.S. Apr. 30, 2007) (post with opinion link here), the Federal Circuit today considered a question of patent invalidity under the KSR test for "obviousness".  The district court rendered its decision without the benefit of KSR, but that didn’t deter the Federal Circuit from upholding the trial judge’s findings of fact and legal conclusion that prior art made the combination of electronics with the functions of an earlier mechanical device obvious and the patent claim therefore invalid.  Leapfrog Enterprises, Inc. v. Fisher-Price, Inc., No. 06-1402 (Fed. Cir. May 9, 2007).

Blawgletter offers two observations:

  1. Leapfrog begins the process of reconciling the Federal Circuit’s pre-KSR obviousness precedents with the less "rigid" test in KSR.  In KSR itself, the Court noted that the Federal Circuit already had relaxed its "teaching, suggestion, or motivation" methdology for determining obviousness and reserved the question of whether the relaxation accorded with the KSR test.  Leapfrog suggests that the Federal Circuit believes it solved the problem before KSR.
  2. Leapfrog makes only a short hop from KSR.  Both cases involved a patent that used electronics to perform functions that prior art executed mechanically.  Both also concerned a combination of prior art that existed in the same field — a gas pedal in KSR and a talking book in Leapfrog.

Barry Barnett

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Last October, IBM — the biggest holder of U.S. Patents — charged Amazon.com with patent infringement in Lufkin, Texas.  Today, the two announced a settlement, disclosing only that they kissed and made up "for an undisclosed amount of money paid to IBM and a long-term patent cross-license agreement."  Story here, press release here.

A personal item of interest, if you’ll indulge us:  Lufkin sits about 20 miles and across the Angelina River from Nacogdoches, Blawgletter’s hometown.  Which recalls to us lyrics from the only song that, as far as we know, mentions that idyllic community by name: 

Nacogdoches
Yes, yes, yes
N-a-c-o-g-d-o-c-h-e-s.

Barry "Golden Dragon" Barnett

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Wirelesstower
How about one of these in your neighborhood?

The Ninth Circuit today asked the California Supreme Court to tell it whether the hideousness of wireless transmission towers and the like authorizes a Golden State municipality to deny a wireless carrier’s application to put those ugly things in a public right of way.  The court actually phrased its question like this:

Do California Public Utilities Code sections 7901 and 7901.1 permit public entities to regulate placement of telephone equipment in public rights of way on aesthetic grounds?

Sprint PCS Assets, LLC v. City of Palos Verdes Estates, No. 05-56106 (9th Cir. May 8, 2007). 

Blawgletter likes our version better.

We sympathize with the citizens of Palos Verdes Estates.  Lots of wireless towers do indeed offend even crude ideals of visual beauty.  We hope the California Supremes say "yes".

Barry Barnett

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Ernesthemingway
Ernest Hemingway wrote The Sun Also Rises (1926).

On April 9, Blawgletter reported the dismissal of the complaint by Sun Microsystems and Unisys against dynamic random access memory chips for price fixing.  We also predicted that Sun and Unisys would "need every minute" of the 30 days (until May 4) that the district court allowed them to fix the shortcomings. 

We don’t rightly know whether Sun and Unisys needed every minute, but they did in fact use all the time they had.  Behold — their 39-page Amended and Consolidated Complaint for Damages and Injunctive Relief.

Blawgletter hasn’t read the new opus and so can’t vouch for its sufficiency.  And yet we have another forecast:  the defendants will move to dismiss it.

Barry "Nostradamus" Barnett

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A Ninth Circuit panel today exonerated a credit reporting agency that included false information in a consumer’s credit report.  The 2-1 court held that Experian made an adequate investigation after Jason Dennis notified it that he did not, in fact, suffer a civil judgment against him.  Experian’s contractor looked only at the civil court’s "Register" and didn’t try to get the judgment itself, which didn’t actually exist.  The majority nonetheless concluded that Mr. Dennis had no claim under the Fair Credit Reporting Act.  Dennis v. BEH-1, LLC, No. 04-56230 (9th Cir. May 7, 2007) (per curiam).

The dissenting judge believed that Experian had to do more than have its contractor look at the Superior Court’s Register and should instead have also located the judgment itself.

Barry Barnett

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The Seventh Circuit today upheld a preliminary injunction against the use by former insurance agents of customer data — mainly names and contact information that resided in the insurer’s proprietary database.  The opinion’s author, Judge Posner, explained how the info qualified as a trade secret but also pointed out imprecision in the injunction itself.  The court remanded "for the entry of a better-drafted injunction."  Am. Family Mut. Ins. Co. v. Roth, No. 06-3412 (7th Cir. May 7, 2007).

Barry Barnett

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Squirrel
Don’t eat that!  Bury the durn thing.

Lawyers average about 130 on IQ tests — 30 points above the norm.  Congratulations! 

The average translates into higher income for you.  But does it also mean greater wealth?

Probably not, according to a new study by Jay Zagorsky at the Center for Human Resource Research, Ohio State University.  The study’s abstract says:

Regression results suggest no statistically distinguishable relationship between IQ scores and wealth [for the general population, not just lawyers]. Financial distress, such as problems paying bills, going bankrupt or reaching credit card limits, is related to IQ scores not linearly but instead in a quadratic relationship.  This means higher IQ scores sometimes increase the probability of being in financial difficulty.

The last sentence may explain why many terrific lawyers keep working into their septuagenary — they didn’t bury enough acorns, can’t find the ones they did bury, or spent their acorns on Ferraris and their new admirers.  It may also solve the mystery of why we see amassment of large estates by some of our profession’s lesser lights.

The knack for burying acorns where the interrer can find them and the energy to dig them up seem to Blawgletter a combination of aptitudes that don’t necessarily arise from the same gene that bestows brilliance.  And, yet, we believe — with the fervence of necessity — that smart people can learn.

Our advice, which we aspire to take:  do the squirrel thing.  Unless, of course, you don’t like acorns.

Barry Barnett

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What happens when you get cocaine on your currency?  Bad things, man.  Bad things.

Just ask David Aguasviva.  Testing of the $487,825 that New Jersey officers found during a traffic stop showed that the cash "had been around large quantities of cocaine."  The government got a default judgment in its action for forfeiture of the money, and Mr. Aguasviva tried without success to get the district court to set the judgment aside.  The Third Circuit affirmed, noting Mr. Aguasviva’s failure to state, under oath, persactly what interest he had in the bills.  United States v. $487,825.00 in United States Currency, No. 06-3138 (3d Cir. May 3, 2007).

Blawgletter can understand Mr. Aguasviva’s reluctance.  Perhaps next time he’ll remember not to get the powder diamonds, the Serpico 21, the weasel dust, the California cornflakes on the dough.

Barry Barnett

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