Friday, May 30, 2008

The pot and the kettle are both black: Mee vs. Dow

The patenthawk blog has a post about Dow vs. Mee Industries. In that post, Dow does not look too good.

Contemplate however a ruling in March 2008 in Mee Industries vs. Dow Chemical, 2008 U.S. Dist. LEXIS 24405 (MD Fl (Orlando)):

In its motion, Dow objects to Mee's efforts to evade the page count limits. (Doc. 134). In light of the conclusions reached above, the Court will deny Dow's motion as moot. Beyond this, the Court notes that Mee's motions not only violate the rules with regard to page limitations, a review of their content demonstrates that they are entirely without merit and appear consistent with a "scorched earth" trial strategy. The motions serve no purpose other than to waste the time of this Court and cause the opposing party to expend unnecessary litigation costs. The Court will no longer tolerate such practices, and further occurrences will likely result in sanctions.

The decision by Judge Presnell is otherwise a lecture in in limine motion practice, beginning with:

The term "in limine" has been defined as "on the threshold; at the very beginning; preliminarily." Luce v. U.S., 469 U.S. 38, 40, 105 S.Ct. 460, 462, 83 L.Ed.2d 443 (1984) (citing Black's Law Dictionary [*2] 708 (5th ed. 1979)). A motion in limine seeks a protective order prohibiting the opposing party, counsel, and witnesses from offering offending evi-dence at trial, or even mentioning it at trial, without first having its admissibility determined outside the presence of the jury. 75 Am. Jur. 2d Trial ยง 39 (2008).

What a difference a few months make!

The CAFC looked at part of this matter in 2003: 341 F.3d 1370; 2003 U.S. App. LEXIS 18389; 68 U.S.P.Q.2D 1176.

Therein, the CAFC observed: The scope of what is taught by a prior art apparatus extends not only to the apparatus itself, but also to the obvious methods of use suggested by the structure of that apparatus. See In re Lonardo, 119 F.3d 960, 968 (Fed. Cir. 1997) (holding that "the claimed structure of the device suggests how it is to be used and that use thus would have been obvious"), cert. denied, 522 U.S. 1147, 140 L. Ed. 2d 175, 118 S. Ct. 1164 (1998). The Mee proposal placed a specific apparatus on sale, and thus constituted a piece of prior art against the claims of the patents-in-suit both as an apparatus and the obvious uses of that apparatus.


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