The Federal Circuit today granted Vonage’s emergency motion to stay a potentially ruinous injunction that followed its loss at trial on claims that it infringed Verizon patents on voice over internet protocol (VoIP) technology.  The injunction barred Vonage from signing up new customers for its VoIP telephone service.  But the court also expedited briefing and oral argument in the Vonage appeal.  Its docket entry on PACER reads thus:

ACTION: Entry 19 :  Granted. Vonage’s opening brief is due May 9, 2007. Verizon opening brief is due May 23, 2007; Reply brief due 5/30/2007.  All briefs hand-served. Oral argument is scheduled for June 25, 2007 at 10:00 a.m.

For the companies’ responses, check out a WSJ article here.

Barry Barnett

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The Ninth Circuit today ordered rehearing en banc of a case against United Parcel Service under the Americans with Disabilities Act.  Bates v. United Parcel Service, Inc., No. 04-17295 (Apr. 24, 2007).

The three-judge panel last year affirmed findings and conclusions, following a bench trial, that UPS violated the ADA by requiring drivers to pass a Department of Transportation hearing test.  The court also upheld the district court’s refusal to decertify the class.  Panel opinion available here.

Barry Barnett

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The Second Circuit today upheld an Albany district court’s decision to slash the hourly rates of big city lawyers who succeeded in blocking an election that violated the Voting Rights Act of 1965.  The court clarified Second Circuit law on awards under fee-shifting statutes by, among other things, authorizing district courts to apply a "forum rule" (limiting permissible rates to those prevailing in the district court’s locality) and to consider the reputational and publicity benefits that outlander lawyers hope to garner from the representation.  The court also emphasized that district courts should strive to recreate a reasonable hourly rate that a paying client in the area would have agreed to pay from his own pocket.  Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, No. 06-0086-cv (2d Cir. Apr. 24, 2007) (available at www.ca2.uscourts.gov).

Blawgletter wonders how law firms considering potential pro bono work will react.  Ordinarily, the firms take on non-paying work with the knowledge that they may lose but also with the hope that they can recoup their time and expenses should they prevail.  Taking as it does a hypothetical market that doesn’t exist (one for paying non-paying work) as its starting point, Arbor Hill may restrain these aspiring Publiuses’ ardor.

Barry Barnett

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Ever hear of epanalepsis?  Neither has Blawgletter — at least until the revelation, this Monday, that Attorney General Alberto Gonzales’s testimony last week before the Senate Judiciary Committee "increased" the President’s "confidence in his ability to do the job." 

The epanaleptic phenomenon sprang to mind because Blawgletter didn’t rightly know what "the king is dead — long live the king!" meant.  A Google search resolved the matter, enlightening Blawgletter that its utterance marks the succession of monarch B immediately after the monarch A’s decease.

So it doesn’t apply literally to the situation of Mr. Gonzales — or Fredo, as the President nicknamed him.  And yet.  Didn’t Fredo Corleone take a bullet to the back of the head after endangering the career of his boss (and brother) Michael?  And didn’t his boss love but despise him?

Same deal.  Only this Fredo doesn’t realize that he’s already bled out.  You know, like Bruce Willis in that "I see dead people" movie? 

So long live Deputy Attorney General Paul J. McNulty!  Or perhaps his deputy.

Barry Barnett

We promise to use only words that we don’t have to look up in our next post.

The Federal Circuit today upheld a post-trial judgment that Andrx literally infringed several claims of a patent covering the blockbuster drug Prilosec, which inhibits production of gastric acid.  The court also affirmed the district court’s findings and conclusions that prior art anticipated several other claims, that one dependent claim failed the "obviousness" test, but that the patentholder did not engage in inequitable conduct or fraud or have unclean hands in prosecuting the Prilosec patent.  One judge dissented in part on the grounds that the district court and majority misapplied the tests for "inherent anticpation" by prior art and obviousness.  In re Omeprazole Patent Litig. (Astra Aktiebolag v. Andrx Pharmaceuticals, Inc.) , Nos. 04-1562, 04-1563 & 1589 (Fed. Cir. Apr. 23, 2007).

Barry Barnett

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Today, the Second Circuit affirmed a summary judgment against an insurer that indemnified a shipper for $500,000 worth of damage to a printing press.  The damage occurred during the press’s seafaring journey from Holland to New York.  The district court held that the contracts between the shipper, on the one hand, and the freight forwarder and carrier, on the other, restricted liability to $50 apiece.  When the freight forwarder and carrier each tendered $50, the district court dismissed the lawsuit as moot.  The Second Circuit affirmed.  ABN Amro Verzekeringen BV v. Geologistics Americas, Inc., 05-1917 (2d Cir. Apr. 23, 2007).

Barry Barnett

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YouTube has a video that splices part of an episode of Futurama — featuring a doltish guy from our time in the 31st century — into the Goracle‘s film on global warming — An Inconvenient Truth (trailer here).  As Blawgletter claims an interest in the subject matter and enjoys Futurama to boot, we take pleasure in making a link to the video available to you here.  We hope you enjoy it.

Barry Barnett

The truth?  You can’t handle the truth!  We give our feed away free.

Sir Winston Leonard Spencer Churchill (1874-1965).

The indomitable Prime Minister of Briton during WWII benefited from having an American mother.  So we may forgive him for telling this truth about us:

You can always count on Americans to do the right thing — after they’ve tried everything else.

Barry Barnett

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