Sunday, August 10, 2008

US Court dethrones a Fed judge, cancels a Microsoft win

(Another Circuit Court Kicks Judge Real Off Case, Zusha Elinson, The Recorder (San Francisco) August 4, 2008) In a rare move, the U.S. Court of Appeals for the Federal Circuit booted a trial judge off a patent infringement case Friday. But it was not so unusual for the judge: U.S. District Judge Manuel Real (age 84). Just two weeks ago, a 9th U.S. Circuit Court of Appeals panel took a big class action against American Honda Motor Co. Inc. away from Real. The controversial Los Angeles judge has now been removed from at least eight cases by the 9th Circuit. Coming down hard on Real's judicial skills, the Federal Circuit panel threw out Microsoft's 2006 win over Research Corporation Technologies in a patent infringement case. In its published opinion, the panel reversed Real's decision to declare RCT's patents unenforceable, tossed his orders that found the patents invalid and non-infringing -- and ordered that another judge take the case. "After a thorough review of all the evidence, testimony, and facts of this case, this court concludes the strongly expressed convictions of the trial court in this case may not be easily and objectively reconsidered," wrote Judge Randall Radar for the three-judge panel in Research Corporation Technologies Inc. v. Microsoft Corp., 06-1275. Terrence McMahon, the McDermott, Will & Emery partner who represented RCT before Real, said he was glad to get a new judge on the case. "It was clear that he had a point a view and we disagreed with it - we tried the case and he cut us off at every pass," McMahon said. "I've never had something like this in my whole career, and I hope I never do again." RCT first filed suit against Microsoft in 2001 for infringing on six patents related to digital half-toning. At first with another judge, RCT won a summary judgment motion that some of Microsoft's products were infringing. But after the case was given to Real, things went Microsoft's way. Real reversed the prior judge's order and then canceled the scheduled jury trial in favor of a trial on inequitable conduct to determine whether RCT had withheld information from the patent office. After an hour-long inequitable conduct trial with no witnesses, Real ruled from the bench against RCT because the inventors didn't disclose information about new "K factor" tests to the patent office after they'd already filed for a patent. The Federal Circuit panel wrote that Real erred: The new tests weren't material because they were done after the patent was filed and had nothing to do with the patent anyway. The panel also faulted Real's analysis of the inventors' intent to deceive the patent office. "In sum, the trial court erred in ignoring the materiality prong and in misapplying the intent prong of the inequitable conduct test," Radar wrote. Finally, the panel also tossed Real's exceptional case finding, which awarded attorneys fees to Microsoft's lawyers. "A new day has dawned. Everything that Judge Real did has been erased," McMahon said. A lawyer for Microsoft from Portland, Ore., firm Klarquist Sparkman did not return a phone call seeking comment. But in a statement, Microsoft said, "We look forward to going to trial for the first time and telling our story in court." Real, 84, also did not return a phone call seeking comment. In the Honda class action, Bonlender v. American Honda Motor Co. Inc., 07-55258, a 9th Circuit panel threw out Real's order certifying a nationwide class against the car company, saying the judge abused his discretion by certifying the class on his own "without making any findings regarding Rule 23's requirements for class certification." In March, he was also removed in an unpublished order from another case, U.S. v. Hall, 06-50356, in which he was accused of "excessive and biased interventions" that denied two defendants a fair trial. Two years ago, Congress dropped an effort to impeach Real over allegations that he interfered in a bankruptcy case to help a woman whose parole he supervised. A judicial discipline complaint stemming from the bankruptcy case was twice tossed out, although a public reprimand was ultimately issued. This January, the judicial discipline review body for the federal courts, the Conduct Committee of the Judicial Conference of the United States, disclosed that Real had been accused of a pattern in 72 cases over the years of not providing reasons for decisions as required.

Using real stuff makes Pineapple Express a success

Movie industry, it turns out, has always used legal bud smoking products in feature films and prime time TV shows for years. I have just found out that they obtained the materials from International Oddities. Most recent appearances of their products have been in My Name Is Earl, L.A. Law, Pineapple Express and Knocked Up, among many others. The International Oddities breathes a certain sigh of contentment at the acceptance of their products by key players in the Hollywood scene, in light of their popularity having sunk somewhat a few years ago when the order came through for the skate flick The Lords of Dogtown, because half the company is ex-skaters just like those in the movie. Hollywood is always trying to gage and be ahead of the upcoming trends, and the positive, informative support of the International Oddities product line reveals distinct changes in the smoking industry. Movie crews report almost anecdotally that International Oddities legal bud products never fail to turn heads on the set, especially after the first puff. They also assure that when names like Jennifer Aniston and Russell Crowe end up on the benefiting end of the International Oddities line, the public will want to inhale deeply as their favorite stars exhale. Most recently, International Oddities smoking products have found their way into so many Hollywood movies that it's no wonder these products have been used throughout the movie Pineapple Express. One might conclude that the "fake weed", as star Seth Rogan called it, used onstage at the 2008 MTV music awards was the same as that used in several scenes in the movie, but this is only a half of the story. International Oddities products serve to answer the question, "What were you guys blazing up with throughout the movie, Pineapple Express?", the smoking material in the baggie shown onstage at the MTV awards was apparently obtained directly from MTV itself, was a prop and an imitation, and was decidedly non-smokeable. The material smoked onstage in the cigarette, however, was International Oddities product, being a portion from the actual material used in the movie. To shed more light on the interesting event, it was very informative and pleasing to International Oddities for Seth Rogan to reveal in an interview that their products were used extensively in the movie. The International Oddities smoking line is so unique and innovative, that sometimes the company executives themselves forget the initial shock the public express when they first learn of their legal bud smokes. Their customers' reactions, the company reports, are quite similar to the amazement expressed by the stars in the front rows of the MTV music awards -Robert Downey Jr., Will Smith, Rhiana, Chris Brown, and Anne Hathaway, among others. During the fake smoke stunt the remarkable aroma of International Oddities product blew into the audience. On the contrary, the International Oddities product line is not a prop at all, nor is it the fake weed sort, but the RYO (i.e., roll your own) legal bud hybrids, which are the brainchild of the International Oddities staff itself. At a recent trade exhibit, industry insiders shared their opinion that the widely-smoked line offered by International Oddities, which consists of dozens of buds such as Krypto and Panama Gold Bud and is known for the pleasurable effect, represents the future of smoking in America. These high-quality smokes can be found in fine smoke shops nationwide, and purchased directly from As the company principals put it: "We look forward to the day when people will accept our products as the 25-year overnight success that they are, rather than looking down their noses while passing judgment on that which they do not understand. Until that time, we are content at being the best-kept secret in the entire smoking industry and a favorite to the underground elite."