Sanctions for Frivolous Lawsuit: Fraser v. High Liner Foods

PatentLawPic738Fraser v. High Liner Foods, et. al. (Fed. Cir. 2009)(non-precedential)

Acting pro-se, Alfred and Paul Fraser sued a handful of fish-stick makers for patent infringement. The Frasers apparently run

The Fraser Patent No. 4,781,930 covers a method of soaking fish in oil before freezing the fillets. The only claim reads as follows:

A method of preparing a fish product comprising filleting a fish to appropriate thickness, immediately immersing the filleted fish in a vegetable oil for a period of 5 to 10 minutes at room temperature to effect absorption of the oil to a depth such as to inhibit excretion of the natural fluids from the fillet and prevent incursion of air and moisture, draining the excess oil from the surface, covering the surface with crumbs and then freezing the fillet.

The district court granted summary judgment in favor of the defendants:

  1. Defendant Midship could not be liable because that company was dissolved more than six years before Frasier filed suit. 35 U.S.C. § 286.
  2. Defendant Good Harbor was dissolved bankruptcy in 2006. It cannot be held liable.
  3. Defendants UNFI and National Fish were never properly served and thus cannot be required to appear in court. The court noted that “A return of service merely noting delivery to ‘girl at front disk’ does not comply with the strictures of Fed. R. Civ. P. 4(h) or Mass. R. Civ. P. 4(d)(2) with respect to service on a corporation.”
  4. Defendants Gorton’s, Roche Bros., ConAgra, High Liner, and Pinnacle did not infringe, literally or by equivalents. “None of the five appellees immerse their frozen fish products in a vegetable oil for a period of 5 to 10 minutes at room temperature. Further, none of these appellees begin preparing frozen fish fillets using fresh fillets.”

The Federal Circuit affirmed each of these decisions and then turned to the issue of sanctions:

“The district court noted that Appellants did not provide any of the defendants with any notice of their patent, that they did not question any defendant concerning the manner of fish processing, and in the case of Midship and Good Harbor, that they did not even inquire as to the existence of these defendants prior to bringing suit. The record shows that Appellants proceeded to file suit without ascertaining correct names of some defendants. Despite detailed letters from counsel for various defendants explaining their clients’ processes and pointing out the differences between those processes and the patented process, Appellants continued to press forth the litigation. Appellants continued despite the district court’s clear explanation at a hearing that they could not prove infringement merely by proving the presence of oil as an ingredient on the list of the products at issue.”

In the end, the court affirmed the minimal sanction of only $500 per defendant.

26 thoughts on “Sanctions for Frivolous Lawsuit: Fraser v. High Liner Foods

  1. Defendants will always deny any wrong doing. A
    good atty would put this forward first. One should trust but verify. That is why there is or should be DISCOVERY. The Judge here did not do that or allow that.
    Is there not a new law 16.6 to address this short coming?

  2. Maybe the Courts thought the Frasers had already paid the 3 piece suits in the room by the defendants use of methods to produce products.
    See the introduction of Canadian Patent by the same Frasers and the same time period. This clearly is a Doctrine of Equivelant. Hum.

  3. Was watching Channel 5 Chronicle show on Good
    Harbor Fillet Company ; doing well and still alive. Looking for lunch business of school programs across country. Thought it was DISSOLVED? Hum.
    Oh, it would appear that each defendant’s method
    IS a Doctrine of Equivelant to obtain the same result as the INVENTION. Sealing the fish to inhibit excretion of the natural fluids and prevent incursion of air and moisture. Hum, do they do that????? Smart guys. Look at Canada to confirm.
    Notice given to industry,products and packaging were printed in various industry magazines.
    Rule 4 is a proper service to a defendant and if
    necessary followed by constable service.
    Another question is, do the other methods used
    work WITHOUT OIL ? Answer, NO THEY DO NOT.

  4. Interesting bloggers. Malco Mooney,6,Blimpy,GPope
    MaxDrei and EW, and last but not least Alan McDonald.
    How old r u guys? Why r they pro se ? MONEY $250,
    000 down, 1/3 + fees !!!!!! Nice job if U can get it.

  5. Fantastic link, staff.

    “Overall, based on court rulings over the last several years, roughly half of all litigated patents are upheld in court. That’s pretty balanced and suggests there is no problem with patent quality.”

    I only piss all over the floor roughly half the time I try to urinate in my toilet. That’s pretty balanced, and suggests I don’t actually have a severe binge drinking problem.

  6. “. . . immersing the . . . fish in . . . oil for a period of 5 to 10 minutes AT ROOM TEMPERATURE . . . .”

    No wonder the patentees avoided the prior art and the defendants avoided infringement.

    Gotta love lockjaw.

  7. Failure of the courts to assess significant sanctions is not limited to pro se patent holders. In our case against a Utah laboratory, one of the most prestigious firms on the planet, Quinn Emanuel, frivolously asserted soverign immunity on behalf of their client, ARUP, in the face of a recent 10th circuit ruling that ARUP is not entitled to soverign immunity. We are asking for sanctions under Rule 11, but the district court may well refuse to grant any sanctions at all. If the courts would start issuing realistic sanctions, the system would run a lot better.

  8. Dear staff,

    Re:
    “For the truth about trolls, please see http://truereform.piausa.org.”

    Thank You for the link.
    Although many comments on this thread were enjoyable, yours was by far the best — it should be a daily reading requirement for all Patently-0 posters.

    Your link should win the “Link of the Week” award!

    * * * * *

    Some of the other comments don’t pass smell test — they smell, well, like fish lying in the sun for a week.
    This, of course, is not to say that the Frasers are not jerkoffs.

  9. Who is Malcolm Mooney, anyway? A Google search for “Malcolm M” pops-up his name second on the list. Is he the artist, or the vocalist?

  10. Gideon,

    You missed the freakin point. The $500 was a signal to the hapless plaintiffs that, while we support your right to sue on your patent pro se, we don’t countenance legal hacks in our court. Get your act together next time you want to come to our court.

    Some people just don’t get it.

  11. 500 bucks might as well be 500 cents.

    There is no deterrent there.

    While I understand that the U.S. legal system is geared to protecting the impecunious, it’s sad that jokers like this are wasting resources.

    20 grand would have sent a better message.

  12. “1) File pro se lawsuit
    2) get competitors to admit they don’t use whole filets in their fish sticks (but your company does)
    3) Pay a few thousand dollars in sanctions
    4) ?????
    5) Profit”

    That’s exactly what I was thinking lol.

  13. 1) File pro se lawsuit
    2) get competitors to admit they don’t use whole filets in their fish sticks (but your company does)
    3) Pay a few thousand dollars in sanctions
    4) ?????
    5) Profit

  14. “immediately immersing the filleted fish in a vegetable oil for a period of 5 to 10 minutes at room temperature to effect absorption of the oil to a depth such as to inhibit excretion of the natural fluids from the fillet and prevent incursion of air and moisture”

    Sounds lubricious.

  15. This 1986 patent names one Gammons as prosecuting attorney. Wonder where he is now, because he makes the invention seem like an important contribution to the art of gourmet fish. The patent might be on only one page but there is room in it for recipes, not only with “animal oil” but also Ritz crackers and “Pepperidge Farm Seasoned Stuffing”. Can one still buy that particular product, I wonder.

  16. I don’t acknowledge those who use the word “troll”

    Villifying plaintiffs is for losers Mr. McDonald.

    The Frasers have done a sufficient job of embarrassing themselves. However, if they had their ducks in a row, or had been represented by competent counsel, they may have sustained their cause at which point, we would be searching for a relevant teaching from their case.

  17. “Further, none of these appellees begin preparing frozen fish fillets using fresh fillets.”

    EW.

  18. The Fraser brothers got exactly what they paid for in the representation department and got exactly what they deserved from the courts.

    As for “POWERFUL COMPUTER BRAIN”… it might have been funny once. So goes the desperate search for friends and for relevance…

  19. Just once I’d like to see a pro se “inventor” hit with the defendant’s full attorney’s fees as a Rule 11 sanction and forced into bankruptcy.

    How many troll suits would that stop?

  20. “A method of preparing a fish product comprising filleting a fish to appropriate thickness, immediately immersing the filleted fish in a vegetable oil for a period of 5 to 10 minutes at room temperature to effect absorption of the oil to a depth such as to inhibit excretion of the natural fluids from the fillet and prevent incursion of air and moisture, draining the excess oil from the surface, covering the surface with crumbs and then freezing the fillet.”

    Heck of a job, PTO. And the claim doesn’t even recite a POWERFUL COMPUTER BRAIN.

Comments are closed.