For those of you who, like Blawgletter, have trouble making sense of goings-on in Iraq, check out Kevin Berger’s "The Iraq insurgency for beginners". It explains a lot.
Barry Barnett
Logging Plan Violates National Forest Management Act, Ninth Circuit Rules
The Ninth Circuit today ordered a district court to grant a preliminary injunction barring the logging of "live" trees bigger than 21 inches in diameter at breast height in the Umatilla National Forest. The court held that the National Forest Service’s plan to sell logging rights after the "School Fire" of August 2005 violated the National Forest Management Act. The district court previously denied the application of environmental organizations for a preliminary injunction. The Lands Council v. Martin, No. 06-35781 (9th Cir. Mar. 2, 2007).
Bee gotta buzz, bird gotta sing — and trees gotta grow.
Barry Barnett
Fifth Circuit Requires Good Health Before Death
Need it? Forget it.
Reversing a final judgment for widow Varsha Grogan and rendering judgment against her on a $1,000,000 life insurance claim, the Fifth Circuit held today that her husband’s policy required his "good health" before it took effect. The policy provided that it "shall not take effect unless" payment of the first premium occurs "during the Insured’s lifetime and continued good health". The court construed the language as establishing good health as a condition precedent to the effectiveness of the coverage. The court also held that Mr. Grogan’s cancer antedated payment of the first premium. Assurity Life Ins. Co. v. Grogan, No. 05-51609 (5th Cir. Mar. 2, 2007) (applying Texas law).
One may well ask why a healthy person needs life insurance. Answer: they generally don’t. That explains why carriers earn profits on premiums. The risk of death to a hale and hearty individual usually arises from the possibility of a tragic accident, an event that happens to few. But a man who already has cancer — even if he doesn’t know about it — poses a far higher risk. Insurers, um, prefer not to take them on as customers.
So what do these outfits insure? Blawgletter infers that they cover, first, fatal accidents and, second, ailments that commence after the policy takes effect. You can get insurance only if you probably don’t need it. Alrighty then.
Barry Barnett
Attorney Advertising
This looks like a genuine advertisement for legal services.
Check out this story in the NYT today about how Big Apple and upstate law firms have responded to new ethical rules on advertising. Has Blawgletter complied now?
Barry Barnett
Riposte to Retort: Taking the High Road
A new friend across the pond, Professor Gavin Kennedy, posted a kind item about Blawgletter’s invocation of Homer Simpson (No Comeuppance!) in reference to Wealth of Nations (1776) author Adam Smith — the Scot professor’s countryman and pastime. See it here. Blawgletter appreciates the gentle ribbing.
Blawgletter now recalls — too late — the motto of Scotland: Nemo me impune lacessit. It means "no one provokes me with impunity." Aye!
Barry Barnett
Federal Circuit to District Court: Whoa!
Blawgletter doesn’t know whoa from giddyup.
The Federal Circuit issued a writ of mandamus today. The writ requires the district court to stay its proceedings in a patent infringement case until the International Trade Commission completes its work regarding a possible ban on importation of foreign products that infringe the same six patents. The court ordered, under 28 U.S.C. 1659, a stay of the district court lawsuit pending the outcome of the ITC matter, including any appeals. In re Princo Corp. , Misc. No. 841 (Fed. Cir. Mar. 1, 2007).
The underlying dispute concerns compact disk technology. The ITC issued an exclusion order will take effect on April 6, 2007, when the 60-day period for presidential review runs out.
Barry Barnett
Lie Detection
Pinocchio made lie detection easy.
Steven Lubet’s "Dicta" column in the March 2007 issue of The American Lawyer highlights the conceit, common among judges, that watching someone’s face allows them to determine the witness’s truthfulness. He mentions that even professional lie detectors (including CIA agents and trial lawyers) fail in their craft at least half the time. Who does better? Poker players, who over time observe deviations from other players’ baseline behavior. Ah.
One’s face tells the least about prevarication. Hence "poker face".
Which body part conveys the most reliable information? Your feet. Interesting.
Believe me.
Barry Barnett
Annals of Antitrust Enforcement: Where Have All the Price-Fixers Gone?
Why do companies fix prices? Because
they can get away with it? Hmmm.
Blawgletter notes, with concern, that the U.S. Department of Justice’s Antitrust Division hasn’t brought a single new price-fixing case in 2007. Worse, in all of 2006, the Division filed only one — against a magazine paper manufacturer — according to a review of its press releases. What has the group done instead? Pursued small-time bid-riggers and liars(!) and wrung its hands over whether antitrust laws inhibit monopolists too much.
Does Blawgletter believe that the lack of price-fixing prosecutions reflects less criminality? That cartels have ceased fixing prices and dividing markets? Or that less enforcement has encouraged voluntary compliance?
No.
A believer in enforcement cycles, Blawgletter predicts that the conspiracies of that last several years will start coming to light in, oh, about mid-January 2009. Just a guess.
Barry Barnett
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Reverse and Remand for Remand of Removal
Today, the Eighth Circuit refused to extend the time for removing a case beyond the statutory 30-day period. The remover, R.J. Reynolds, argued that it got the idea for removing from a decision that recognized a new jurisdictional basis for removal. The court didn’t buy the theory, holding that the intervening decision didn’t restart the 30-day removal clock under 28 U.S.C. 1446(a). Dahl v. R.J. Reynolds Tobacco Co., No. 06-1776 (8th Cir. Feb. 28, 2007).
Clothes, But No Infringement
AquaTex accused Techniche Solutions of infringing a patent on "evaporative cooling garments." The Federal Circuit today upheld a summary judgment against AquaTex, concluding as a matter of law that AquaTex hadn’t raised a fact issue as to infringement under the doctrine of equivalents. AquaTex Industries, Inc. v. Techniche Solutions , No. 2006-1407 (Fed. Cir. Feb. 27, 2007).
Who cares? Certainly the parties do. Should you too?
If you handle patent infringement cases, yes. The decision may help you avoid pre-trial disaster. Allow Blawgletter a moment to explain.
Technice moved for summary judgment of non-infringement. Crafty AquaTex responded by submitting the deposition testimony of Techniche’s CEO. Probably the CEO said things that a jury would find compelling, possibly damning. But apparently AquaTex didn’t reckon with the special proof requirements that apply even on summary judgment to a doctrine of equivalents infringement claim.
As the court pointed out, the equivalents doctrine requires "particularized testimony of a person of ordinary skill in the art, typically a qualified expert, who (on a limitation-by-limitation basis) describes the claim limitations and establishes that those skilled in the art would recognize the equivalents." Slip op. at 14 (footnote omitted) (emphasis added). The CEO’s testimony "only explained how the defendant’s product operated" and did not address the equivalence of the Techniche product to the "patented method on a limitation-by-limitation basis" or the insubstantiality of the differences between them. Id.
Lesson: To beat a summary judgment motion under the doctrine of equivalents, you should get an expert who compares the bad guy’s product with the patent and explains, with respect to each claim limitation, why any differences don’t matter. Good luck!
Barry Barnett
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