Tuesday, January 02, 2007

Showalter named IP chair at Baker & Botts

A news release observes: Bart Showalter, who has developed a successful practice in intellectual property law during his 14 years at Baker Botts, has been named Chair of the firm's nationally-recognized Intellectual Property Department effective January 1, 2007. Showalter moves into the post following the retirement of current IP Department Chair Jerry Mills.

IPBiz notes William C. Slusser of Baker & Botts, L.L.P., of Houston, Texas represented Exxon in the appeal, and 1995 CAFC decision, of the case between Exxon and Lubrizol over a lubricating oil composition (US 4,867,890).

The CAFC decision contains the text: The trial judge, candidly expressing considerable difficulty in understanding the chemistry and law involved in the case, treated the issue of claim interpretation as a matter of deciding which of the two parties offered the correct meaning of the claims.

The CAFC also noted: As we explain below, under a jury charge stating the correct interpretation of the claims, no jury could reasonably have found -- on the evidence submitted by Exxon -- that Lubrizol's accused products literally infringe Exxon's claims. Because of Exxon's failure of proof, Lubrizol is entitled to judgment as a matter of law. See Zenith Labs., Inc. v. Bristol-Myers Squibb Co., 19 F.3d 1418, 1424, 30 USPQ2d 1285, 1290 (Fed. Cir. 1994). Accordingly, we reverse the final judgment on liability entered on the jury verdict and vacate the order awarding attorneys' fees and costs and the injunction entered against Lubrizol.

Separately: Under the proper charge, the jury would not have been asked if Lubrizol used Exxon's starting ingredients. Instead, the jury would have been asked to find whether Exxon had proved by a preponderance of the evidence that Lubrizol's products at some time contained each of the claimed recipe ingredients in the amounts specifically claimed.

The issue of injunctions in patent law was reviewed by the Supreme Court in the recent eBay case.

Injunctions in copyright law came up in the Clonus case in SDNY: Producers Myrl A. Schreibman and Robert S. Fiveson sued DreamWorks and Warner Bros. in August, 2005 claiming that there are at least 90 instances in which "The Island" is identical to "Parts: The Clonus Horror." U.S. District Judge Shira A. Scheindlin of the Southern District of New York refused to issue a preliminary injunction Oct. 27, 2005.


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