Tuesday, May 29, 2012

3M v. Mohan: example of poorly executed pro se case

In 3M Company and 3M Innovative Properties v. Pradeep Mohan, one finds the text:

 As the accused infringer, Mohan was required to present clear and convincing evidence of invalidity to overcome this presumption. Eli Lilly & Co. v. Barr Labs., Inc., 251 F.3d 955, 962 (Fed. Cir. 2001). Mohan relied solely on his own testimony that a turkey baster anticipates the ’865 patent and that the claims of the ’865 patent were obvious in view of a door hinge, eye dropper, gears, toilet plunger, and a toothbrush. Appellee App. 0160. Mohan failed to show that these items disclose or render obvious elements of the asserted claims or that any of these asserted de- vices would be considered pertinent by one of ordinary skill in the art. Mohan’s conclusory assertions of patent invalidity do not raise a genuine issue of material fact sufficient to defeat summary judgment. Applied Cos., 144 F.3d at 1475. Therefore, this court affirms the district court’s finding that the ’865 patent was not invalid. 

Things did not go well for the pro se defendant in the trademark area either:

 Similar evidentiary infirmities plague Mohan’s appeal on trademark validity. The district court found 3M’s marks to be suggestive, requiring some imagination to connect the marks, “CARDIOLOGY III” and “MASTER CARDIOLOGY,” with stethoscopes. See Frosty Treats Inc. v. Sony Computer Entm’t Am. Inc., 426 F.3d 1001, 1004- 05 (8th Cir. 2005) (“Suggestive marks, which require imagination, thought, and perception to reach a conclu- sion as to the nature of the goods . . . are entitled to protection regardless of whether they have acquired secondary meaning.”). 


Regarding trademark infringement, 3M was required to show that there was a likelihood of confusion between its marks and Mohan’s marks. See 15 U.S.C. § 1125(a). 


The district court evaluated each of the SquirtCo factors, and the record supports its ultimate finding of trademark infringement based on the likelihood of confu- sion between 3M’s marks and Mohan’s marks. 3M pre- sented evidence of confusion between the two marks including survey data among nurses and doctors showing a likelihood of confusion of 42 percent. 3M also presented emails between consumers and Mohan in which Mohan apologized for confusion regarding the source of the goods. See 3M II, 2010 WL 5095676, at *21-22. While Mohan challenges the fairness and quality of the survey data, he has not presented any evidence supporting these chal- lenges. Mohan raised similar arguments at trial, and the district court found that “the survey was not substantially flawed, and is accorded substantial weight.” See id. Mohan’s arguments on appeal do not highlight error sufficient to overturn this finding.

Also, as to a jury demand

 Furthermore, 3M was not required to obtain Mohan’s consent in order to withdraw its jury demand because Federal Rule of Civil Procedure 38 does not apply when a party decides to proceed only on equitable claims. See Tegal Corp. v. Tokyo Electron Am., Inc., 257 F.3d 1331, 1341 (Fed. Cir. 2001). Thus, the district court’s finding of trademark infringement and resulting permanent injunc- tion did not violate Mohan’s Seventh Amendment right to a jury trial. 


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