patent pending

"A 'patent pending' notice gives one no knowledge whatsoever."
State Indus., Inc. v. A.O. Smith Corp., 751 F.2d 1226, 1236 (Fed. Cir. 1985).

November 28, 2003


My thanksgiving dinner: beef with broccoli, egg roll, and shrimp dumplings.

My entire extended family has the flu this year, so Thanksgiving has been postponed. I went to a Chinese restaurant last night.

The food was great, but it's not the same without the arguments.

November 27, 2003

Happy Thanksgiving

The girlfriend occasionally reads the blog.

That post I wrote last week about another woman's breasts bought me a ticket to see love actually yesterday.

Stupid blog.

Have a great Thanksgiving.

November 26, 2003

So Firm

I accidentally bumped into a large man in the subway station this morning. This exchange followed:
Guy: "I'm gonna knife your nigger ass"
IA: "Oh, but it's so NICE."

Then I ran like hell.

November 25, 2003

Early Morning Copying

Making copies of your transcripts and writing sample on the copier outside the managing partner's office is pretty bold.

But when he comes in to get a drink of water and you just keep on copying while making small talk about the Jets, you know things aren't going well at work.

November 24, 2003

Matrix Regurgitated

At some point last week, I became a Matrix fanatic.

I only saw the first movie once, years ago. Then my older brother bought me a copy of the second movie for my birthday. I watched it last weekend. Then I watched it again. Then I went out and bought the first one, and watched it. Then I saw the third one. This weekend, I saw the third one again.

Last week my goal at work was to do as little work as possible and I found myself frequenting the Matrix message boards. Then I bought the Animatrix. Then I started playing the Matrix video game.

Now I'm convinced that Seraph is an angel that was a flaw in a previous Matrix brought to this version of the Matrix by the Merovingian who is, of course, one of the previous "ones."

Yeah, I have a problem.

November 21, 2003

It's not you, it's me

Look, if you've had the same problem with your last three significant others, chances are that it's actually you with the problem.

"My last three girlfriends hated kissing." Guess what- you're a terrible kisser.

"My last three boyfriends hated my cooking." Yeah, your cooking sucks.

"My last three girlfriends hated my parents." That's probably because your parents are assholes.

For example, my last three girlfriends have stated that I have problem with appropriate "cuddle time."

I'm working on it.

November 20, 2003

Management 101

When I got back from trial this week, I requested a few files from the file room, requested some patents from our boy in D.C., and initiated a few search requests.

None of these tasks have been completed.

It turns out that while I was away, the partners decided to cancel the firm holiday party for the support staff. Curiously enough, my recent requests to the support staff have fallen upon deaf ears.

Attorneys are notoriously bad managers. They leave everything for the last minute, provide no feedback, and lack basic social skills. But this one takes the cake. Every year, my firm throws two parties: (1) formal dinner in September- black tie- attorneys only- with a band- in the fanciest place in town, and (2) a holiday party for the entire firm- support staff included- with a cheap buffet dinner. No partners show up at the holiday party.

The formal dinner this year occurred as usual.

But the partners decided to cancel the holiday party. I don't know why, it's probably some cost cutting measure. But is sure as hell isn't helping me get my job done.

Attorneys: educated as hell, but not too bright.

November 19, 2003

That Five Cents

I've been going to the same dry cleaner every week for over two years. They do all of my shirts, pants, suits, and laundry. I pay them about 30 to 40 bucks a week. Over two years, that's a lot of cash. They know my name and they smile big when they see me.

This morning my bill came out to $36.05. I was the first customer in there, and I handed her 40 bucks. She asked if I had a nickel, but I didn't. She paused, looked at my 40 dollars, then proceeded to crack a roll of quarters and a roll of dimes to make sure that I got my proper change.

It was just kind of shitty that she wouldn't let me go on that nickel.

November 18, 2003

Back in the Saddle

I have returned to NYC. Case settled (terms are confidential, I can't say what happened).

Now I have a serious case of post-trial depression. When you spend almost all of your time working on one case for the past six months and it ends in a flash, you feel lost and without purpose. I came in this morning and I suddenly have nothing at all to do.

I've been through this before. You take a week of work very slowly and then try to get on a new case.

You know what that means- the IA will have to start kissing ass again. This is the bane of being an attorney- looking for work. Today I will start "popping in" partners' offices and "just seeing how things are going" because "we haven't talked in a while."

Some days I hate being an attorney. I just want to work without all the bullshit.

November 17, 2003

No Spoilers

I saw Matrix: Revolutions over the weekend in the IMAX theater. Here is my review.

I sat in the front row. Persephone's breasts were 20 feet high.

It was glorious.

November 15, 2003

Fucking Miss Marriott

When I come back the hotel late at night, all I really want is to press 'power' on the television and have ESPN bombard me with anything that isn't law.

Instead, every night I come in and press power only to have some perky blonde tell me all about the movies I can order in my hotel room, no matter what channel I was watching when I turned off the tv.

"Welcome to the Marriott!! Have you seen league of extraordinary gentlemen? It's spectacular!! The kids would love Pirates of the Caribbean!!"

After two weeks, I want to strangle Miss Marriott.

November 14, 2003

New York, New York

Three things I miss about NYC:
1. NY1 (the local news channel in NYC).
2. The subway. Mostly, the lunatics on the subway.
3. The sushi.

Federal Judges
A Rant From the Bar

Allow me to open with two of my favorite jokes:
1. Two angels are talking to each other up in heaven, and one says to the other: "We're having a lot of trouble with God today- he thinks he's a Federal Judge."

2. How many Federal Judges does it take to screw in a light bulb?
One- he holds it still and the world revolves around him.

Federal Judges hate patent cases. That is fine with me, but that doesn't entitle them to give them less weight than any other matter.

The judge in this case granted every in limine motion of both plaintiffs and defendants (motions to exclude evidence), most of which were clearly contrary to law, before any replies were filed.

The judge only chose 8 jurors and told the parties that they better hurry up the trial because if three were excused he would declare a mistrial. He conducted his own voir dire because he thought we would take too long.

The judge "discovered" over the weekend that his wife's mutual fund owned $200 worth of stock in the defendant company, so he recused himself from the case. The parties agreed to keep him on the case, but he left anyway.

The new judge said that we had 12 hours of court time to finish our case which was unfair to both defendants and plaintiffs. He also told us that we couldn't try the entire case to this jury- we would have to try the second issue to another jury. He didn't have time for our case. He said if we didn't like his schedule, we could settle.

It's up to the parties to settle. It is NOT up to the judiciary to create an environment which is completely inhospitable to litigation. If we choose to litigate, the judge is supposed to help us, not try to force us out of court at every turn with unfair decisions.

We pay taxes to set up this system. They try to prevent us from using it because they can't be bothered.

Your honor, do your fucking job- that's what you get paid for. You don't like this case? Fuck you, you're a fucking JUDGE. Patent cases are part of the job. Deal with it.

November 13, 2003

The Loud City

Whenever I travel, I am amazed at how quiet other cities are. No city is as loud as New York City. We have more yelling than anyone.


sorry, I couldn't help it.

November 12, 2003

Know Your Role

Yesterday, the witness I prepared testified at trial. He has a tendency to ramble on and on after answering a question. So the partner gave me a new role in the trial. This is how he described it to the witness:

"Watch IA. If he starts writing, shut the fuck up."

And I did. And he did. Good witness.

November 11, 2003

All Rise for the Jury

I've developed an unhealthy crush on juror #7.

Sometimes, during trial, I just want to get up from my seat, grab juror #7, whisk her out of the courtroom and run into the open air, where we can run through the park and hold each other and feel the breeze in our hair and be happy and carefree and never speak of sinusoidal waves or enhanced catalysis again...

November 10, 2003

New Judge

Yeah, we got a new judge today. Right in the middle of trial, we got a new judge.

Things got crazy, they moved for a mistrial, new judge pressured us to settle, he severed the case (meaning we try some of the issues at a later date to a different jury) and everyone went batty.

Some days I fucking LOVE this job.

Home Sweet Home

While on the road at trial - the team got some rather alarming news yesterday: our firm has been acquired by another firm.

Morale is not high in the war room. It's hard to even focus on work when the paralegals in the room are calling other firms looking for a new job and the attorneys in the room are re-writing their resumes because the new firm will probably make a rather large cut.

I leave for one week, and this is what happens?

But correpsondence with Lotus said it best: "no matter what happens, it will be the same shit."

November 09, 2003

Napster Revisited

I never really took much from Napster, apart from things that I couldn't buy in a store.

But once in a while- I really miss Napster.

For example- I really like that R. Kelly song "Ignition." But there is no way in hell one cent of my hard earned money is going into that pedophile's pockets.

I guess I'll just have to keep frequenting crappy bars that play that song constantly.

November 08, 2003

Week 1 is Done

Well, week 1 of trial is done. It was a great learning experience for me. It's like finally reading the last chapter of a book that you've started one hundred times. At trial, you finally see why you do all of the other things you do early on in the case.

My role this week was not startling. I hand exhibits to the witness and the clerk. I check with the court reporter at the end of the day to see if they need anything spelled (like "stoichiometric"). I carry stuff. I read things to see what they say and then tell the partner what they say.

In many ways, being at trial is my reward for months of hard work on the case.

I'm officially a trial lawyer now. Well, sort of.

November 07, 2003

Judicial Notice

Number of jurors that fell asleep during trial yesterday: 2.
Number of attorneys that fell asleep: 1 (not me).

Judge's comments to counsel at the close of the day after the jury left the room:
"Look, if there was ever a case that wasn't fit for the jury, this is it. I see eight attorneys at counsels' tables, figure out a way to settle this case. I know you patent attorneys are very smart, and it's not your fault, but this subject matter is tedious."

I didn't appreciate the tone of the "you patent attorneys."

November 06, 2003

The Trial Bond

A bond forms between people when they're on a trial team. It's inevitable- you spend at least 14 hours a day the team, eat all of your meals with the team, and talk to nobody but the team for a few weeks.

When you ask an attorney, "Hey, do you know the IA?" the answer could be "Yeah, I went to trial with that guy." And attorneys nod because they know that you know that guy. It doesn't mean that you like that person or dislike them, it just means that you KNOW that person- you know all of all of there little ins and outs. You know what they look like when they get up in the morning and you know what they talk about when they work late and start losing their minds. It's like going to war with a person, only not as much fun.

So yeah, I didn't know that D, the legal secretary, gets crabby if she misses Alias. I didn't know that F, the paralegal, has two tattoos. I didn't know that B, the associate, will only drink Pepsi and never drink Coke. I didn't know that G, the tech support guy dreams of owning a harley.

I KNOW these people.

November 05, 2003

The Mouse

My firm issues laptops to all attorneys. We all brought them with us and have a "war room" set up in a law office near the courthouse. This law office set us up with Wifi cards to get on their network.

I forgot to bring my mouse and that little fucking touchpad was driving me nuts. I called staples and had them ship me a brand new ergonomic optical mouse (overnight) to my hotel.

Best 20 bucks I ever spent. It's funny how the small comforts make a big difference in times of great stress.

November 04, 2003

El Diablo

On day 1, shit got hectic. Trying to prepare witnesses and exhibits was getting out of control at night and we had too much to do for only 4 attorneys. So the senior partner called up our New York office and asked for El Diablo.

El Diablo was given his name from the associates. He yells. He curses. He has been known to get very upset. But I like El Diablo, he's the kind of guy you'd want in your corner when things get serious.

El Diablo flew in this morning and fucked shit up. He wanted to know where shit was and what we were doing. He told the client to "shut the fuck up for second" at one point. He asked me "what the fuck" my work product was. He said that some of our preparation "sucked."

El Diablo took us from complete disarray to pretty well organized. He curses and he yells but he GETS SHIT DONE. He called the opposing counsel an objected to shit. He put the client in his place. He told the senior partner that he was wasting too much time.

El Diablo is my hero.

Day 2

Day 1 was fun, and I'm still excited. Quote of the day for day one goes to the Federal Judge:

"If there is a reason you can't serve on this jury, please approach the bench and we can talk about it. It's almost like going to see Santa, except that Santa says 'ho ho ho' and I say 'no no no.'"

Gearing up for day 2 kids. I'm going home to get my 5 hours of sleep.

November 03, 2003

We, the Jury

Is it wrong to pity the jury? Yeah, the judge called in the jury and said "this is a patent case which will go about 3 weeks." There was a collective groan.

I do feel bad for the jury. My firm generally doesn't ask for jury trials, but we took this case over from another firm. Three weeks of the same patent infringement case is boring even for me.

Poor bastards. But on the bright side, they DO get to look at me for three weeks.

November 02, 2003

Eve of Trial

You know that expression "eve of trial?"

Here I am, on the eve of trial. Clients, witnesses, paralegals, attorneys, and one tech support guy. Everyone is frantic. Everyone is complaining about everyone else. The ther side is trying to produce documents the night before trial- indicating that they are frantic as well. No dice, boys.

My dinner choices are available down the hall in the vending machine and include snickers or M&Ms. I'm thinking Snickers.

November 01, 2003

the Tman

Back in January, when I had the stupid idea to run the damn NY marathon, my younger brother the Tman decided to train with me. He's like that- he's down. You want to go to Greenland? He's down. Drive to Philly right now to get some cheese steaks? Sure, Tman will even drive you. Want to train for the Marathon? Sure.

In August, a twisted ankle knocked me out of the NY Marathon.

But the Tman is still running it tomorrow. I won't be there, but all of you New Yorkers better get out there and cheer your lungs out for my brother.

Tman said to me numerous times during the "Lucky 7" Seven Mile Run back in March: "I may slow down, but I will not stop."

That's his running mantra. I'm super proud of him for running the race, and his willingness to do ANYTHING that would make you even remotely happy makes me proud to be his brother.

Go Tman, Go!


The life of the IA, comprising:
residing in Manhattan;
practicing law;
deep frying things;
and generally living for your amusement.

Amy C.
CW (hiatus)
JR (vacation)
Scott S.

Secondary Sources
Me Head
Cooking for Losers


Statement of Law

"[T]he 'warning' of impending patent issuance, whether by a 'patent pending' marking or by direct information from the patentee, imposes no liability but is simply a cautionary notice of a possible future event." Nat'l Presto Indus., Inc. v. West Bend Co., 76 F.3d 1185, 1196 (Fed. Cir. 1996).

"This is a case where there was no real defense so attorneys for the Defendant had no choice but to fight every inch of the way. Objections, motions, and obfuscation was the defense. It was the only defense possible. Truth was the enemy. Stalingrad was saved by the Russians in World War II by literally wearing out the Germans, and this type of defense by lawyers in the last half of the last century came to be known as the Stalingrad defense. Wear the opponents out. Fight for every step. However, the Plaintiff's attorneys brought every possible action under multiple states laws and under federal law that could possibly apply and the battle became irreconcilable. Thus, rancor and accusations became the byword. This is not to indicate that the attorneys defending or prosecuting the case violated any rules of ethical conduct. However, fighting on ridiculous matters became paramount. This in turn caused undue rancor. Argumentum ad Hominum became the key and flavored the entire case and continues to do so." X-It Prods., LLC v. Walter Kidde Portable Equip., Inc., 227 F. Supp. 2d 494, 549 (E.D. Va. 2002).

"This case therefore illustrates the mischief and misery that can accompany the over enforcement of patents rights." Rite-Hite Corp. v. Kelley Co., 56 F.3d 1538, 1577 (Fed. Cir. 1995).