Unfair Competition Book Raises Unfair Competition Claims Against Kenyon

By Dennis Crouch

Duvall v. Kenyon & Kenyon (D.D.C. 2013)

In 1990, ITC Chief Judge Donald Duvall published his treatise titled Unfair Competition and the ITC: Actions Before the International Trade Commission under Section 337 of the Tariff Act of 1930. [correction] He retained ownership of the assigned legal title to the copyright to Clark Boardman Pub. (later purchased by Thompson Reuters) and continued to update the treatise on an annual basis. Judge Duvall died in 1999 and his right to royalty (beneficial title) passed to his widow, Kathryn Duvall.

Attorneys at Kenyon & Kenyon took over the annual updates and, as part of a royalty agreement, Ms. Duvall continued to receive annual royalties on sales of new versions of the book. Each edition listed Judge Duvall as the original author as well as the new authors. In 2012, however, Judge Duvall’s name was removed from the publication and the publisher ceased making any royalty payments to Ms. Duvall. After consulting with the Kenyon attorneys, the publisher wrote to Ms. Duvall:

[A]fter careful determination as to source of the [W]ork’s content, the substantial revision of that content by the current authors, and the many years since Judge Duvall had contributed material to the publication, we were forced to conclude that attributing the work to Judge Duvall no longer provided readers with an accurate statement of authorship.

Ms. Duval has now sued Kenyon & Kenyon and the newly listed authors – alleging copyright infringement, declaratory judgment of authorship, illegal contract (between Kenyon & the publisher), breach of contract, breach of implied duty of good faith and fair dealings, civil conspiracy, interference with contract, and accounting for past royalties.

The complaint provides something of a tour-de-force as it lists page after page of the treatise where Judge Duvall’s original writing is virtually unchanged. According to the allegation, for example, the page shown below compares Judge Duvall’s version with the newest version of the treatise with changes in redline.

The point here is that large portions of the treatise are virtually unchanged and that fact likely leads to the conclusion that Judge Duvall’s copyright continues to provide exclusive rights to the work. The unfortunate aspect of this case is that Kenyon continues to publish the work in the USA. If it had contracted with a foreign publisher then Duvall could have brought the action in the USITC.

Read the complaint: https://docs.google.com/file/d/0B_b15LgT1GHYUGd6YnYxS1RWNjQ/edit?usp=sharing

65 thoughts on “Unfair Competition Book Raises Unfair Competition Claims Against Kenyon

  1. You continue to shreak like an overstuffed balloon…

    You might want to get your money back for that spell checker. It’s one thing to refuse to allow you to spell “anthropomorphization” correctly. But “shreak”?

  2. Such a person as Malcolm is hardly anti-patent. He rather gets it and should be appointed to be our next Director.

    LMAO.

    Seriously – I fell out of my chair laughing so hard at that post.

    Malcolm willl cure all illnesses because all the patients will be dead.

    Nirvana will be reached.

  3. Night, Malcolm does not have “anti-patent” views. What I see is that he is against patent misuse and abuse, and issuing patents on business methods and obvious subject matter only fosters patent misuse.

    Malcolm also understands the abuse of functionality at the point of novelty that the Supreme Court forbad beginning Story’s opinion in Wyeth v. Stone, Morse, Perkins Glue, Wabash Appliance, and ending in Halliburton.

    He also fully understands and easily spots claim that has a mental step as the point of novelty that is not integrated into the other steps as in Diehr.

    Such a person as Malcolm is hardly anti-patent. He rather gets it and should be appointed to be our next Director.

  4. that does not mean that I think there is any relationship with his culture and his king troll status?

    I didn’t say there was. My point was just that you sound like a bad Tarot reading, desperately searching for some tenuous link to justify a wild guess.

    This game has been going on for many years, you say? You’re still not very good at it. Can’t see why it entertains you, either. The only part that entertained me was how quickly you backtracked when it appeared you’d inadvertently offended EG.

  5. “I have fairly extensive experience with Montgomery County and he seems to me to be from there.”

    I lived there for 22 years. While it’s entirely possible that Malcolm is from there, I doubt it. I don’t detect anything in any of his thousands of posts that identifies him particularly with Montgomery County. Are you running his posts through some cultural identification algorithm?

    “I don’t think that is related to his anti-patent views.”

    So why bring it up?

  6. Maybe AAA JJ you aren’t aware that we used to play a game here where we tried to figure out where MM is from and where he works. It has been going on for many years.

  7. AAA JJ: Meaning his culture appears to be from Montgomery County to me. Such things as his political beliefs, manner of writing, humor, word usage, etc as in all those things that make up culture.

    I have fairly extensive experience with Montgomery County and he seems to me to be from there. I don’t think that is related to his anti-patent views. Sheesh.

  8. “What a scumb*g you are to try to make it sound like I have a problem with Montgomery County or that the culture in anyway is responsible for MM’s attitude for patents.”

    Uhm, in case you missed it, you were the one who “culturally identified” Malcolm as being from Montgomery County.

  9. Of course, I suppose it is just when low powered brains like AAA JJ and IANAE are working they tend to interpret everything as if they did it. So, in this case they would undoubtedly attribute a person’s believes regarding patents to where they grew up.

  10. “can you understand that I may be identifying him culturally, but that does not mean that I think there is any relationship with his culture and his king troll status?”

    So if his “cultural identity” and his “king troll status” are completely unrelated, why discuss his “culture” at all?

    “Man you are double thick.”

    I know you are, but what am I?

  11. OK, dolt, put together an argument for how my culturally identifying MM as from Montgomery county has anything to do with his king troll status?

    Sheesh. You have such low moral quality AAA JJ. What a scumb*g you are to try to make it sound like I have a problem with Montgomery County or that the culture in anyway is responsible for MM’s attitude for patents. Where did I say that?

  12. Dolt, can you understand that I may be identifying him culturally, but that does not mean that I think there is any relationship with his culture and his king troll status?

    Man you are double thick.

  13. “Wherever you work, I am sure culturally that you are from Montgomery county.”

    Please explain, if you can, which I doubt, what you meant by this.

    Thanks.

  14. I visited once, maybe ten years ago now.

    Is that where you got the cultures for your research? Because this is all starting to make sense.

  15. Are you a mental patient or something? My troubles with MM are not related to his cultural identity with Montgomery County. No causal relationship. I have other troubles with the king troll.

    Man are you thick.

  16. “I have nothing against Montgomery County.”

    Just its “culture” and those people who are “culturally” from there.

    Gotcha.

  17. Now, now, NWPA and AAA JJ, let’s keep it cool here about living in Montgomery County. I’m glad I grew up there, but I wouldn’t go back to live there now, especially in view of the traffic (I’m all “white knuckles” whenever I’m on either I-270 or I-495). I like the midwest (Cincinnati area) where I currently live which is much more “relaxed.”

  18. I know you are from NIH now.

    Well, I did get grants for my research from them in the distant past. Maybe that’s what your fillings are picking up?

  19. OK MM: fess up. I know you are from NIH now. I have known too many people that have worked there not to see the culture in you.

    (And AAAAA JJJJJ—nothing against NIH! Sheesh! Taking care of business everyday with these dolts.)

  20. maybe a good rankings algorithm would be quite valuable and lead to improving the law firms as well as they compete for rankings.

    Maybe the space aliens will see the imprints made by our children’s footwear and decide to attack another planet.

  21. I am sure culturally that you are from Montgomery county.

    Where in the heck did that come from and what is it supposed to mean?

  22. if the method of ranking was non-obvious over the prior art, then they should be eligible for a patent.

    Is that your idea of 101 analysis?

  23. AAA JJ: put down? I didn’t put Montgomery County down nor its culture. I was merely id’ing the king troll MM.

    Sheesh! Re-read what I wrote and please identify a single word where I am putting down Montgomery County.

    I have nothing against Montgomery County.

  24. I lived in Montgomery County for 22 years. Outside of an ex-girlfriend (herself from PG County) who called it “Monkey County” I never heard anybody use it as a put down. Until now. Culturally, it suited me just fine. Then again, I’m not down in my concrete bunker clutching my AR-15 and vowing that “they” will have to pry it from my cold dead hands. In fact, it’s the complete absence of such delusional paranoia that makes it such a nice place to live. Don’t believe me? Ask George Will. He’ll confirm it.

  25. NWPA,

    Know Montgomery County well as I grew up there, fairly close to NIH and Navy Medical on Rockville Pike. Went to and graduated fromm Walt Whitman H.S. on Whittier Blvd., near River Road.

  26. News flash for Malcolm – stop making your comments AS IF they were binding legal judgments and you won’t have me handing your head back to you.

    You continue to shreak like an overstuffed balloon, and when someone brandishes a point, you go all to pieces.

  27. Well, if the method of ranking was non-obvious over the prior art, then they should be eligible for a patent. And, maybe you would appreciate the rankings. I note that most rankings stink and seem driven by who pays the biggest dollars in magazine advertisements. So, maybe a good rankings algorithm would be quite valuable and lead to improving the law firms as well as they compete for rankings.

    Now go back to work at NIH and be quiet. Wherever you work, I am sure culturally that you are from Montgomery county.

  28. How do you expect law firm rankings to become more accurate without patents on the algorithms? Do you think people are going to spend time improving them if someone else can just copy the program? Be serious.

  29. Who needs due process

    News flash for trollboy: comments in a blog are not binding legal judgments.

    Man, this blog has the d-mbest trolls.

  30. Those are good rankings. But, I would note that a Tier 2 ranking in MIP Handbook is actually very, very strong.

  31. Hmm..I don’t know about those rankings. Kenyon’s reputation in the U.S. is actually quite good.

    It is about the only boutique IP firm that has survived in NYC. The DC office is small in comparison to the NY office.

  32. Speaking of reputation, I thought it would be interesting to visit MIP Handbook for USA, where entries are very much reputation driven. And behold, Kenyon and Kenyon is listed.

    And how they are.

    Bio Life Sciences – National rankings: Tier 2
    Copyright – National rankings: Tier 3
    ITC National rankings: Tier 2
    Patent contentious – National rankings: Tier 3
    Patent prosecution – National rankings: Tier 3
    Trade mark contentious – National rankings: Tier 2
    Trade mark prosecution – National rankings: Tier 2

    I think a few will reconsider that copyright ranking. Also not a single national tier 1 rating. When contributing to a well known book I would have expected them to be a solid tier 1 rated in the field.

  33. Who needs due process when the nose of Malcolm sniffs out the ohnoes necessary to run the world as he sees fit?

    Malcolm for Universal Dictator and King of the Shiny Hats.

  34. Probably should let Kenyon get to tell their side of this before passing judgement.

    LOL. You think they have something to add beyond the nonsense in the complaint?

    In a just world, Kenyon & Kenyon would simply be sanctioned so hard they would need to consider dissolving. What a bunch of sc-mbags.

  35. Since this neither involves patents nor trademarks, I’d say no. Unless you meant this to be a general “should they be disbarred *everywhere*” question?

  36. I agree it is not looking good, but come on that is assuming that all the facts stated in the complaint are true. We can’t be sure of that. And, we can’t be sure that there aren’t other facts that might negate some of the facts stated in the complaint.

    But, I agree….it is not looking good for Kenyon.

  37. While I agree with your point regarding all of the speculation Don’t you mean Kenyon has to first conduct its legal engineering of a defensive position that has some scintilla of factual support. As for the core of the issue and attempting to cut out the widow, res ipsa locquiter.

  38. I’m not sure if having a monetary interest in a copyright gains you standing to sue for infringement, but their copyright infringement argument seems to be on shaky ground regardless. TR holds the copyright and by definition can’t infringe, and so Kenyon can’t induce TR to infringe. With no actual copyright infringement, that should be an easy matter to dismiss.

    Seems like the breach of contract and contract interference allegations are where the meat of this complaint would be, but with no contracts included as exhibits with the complaint, it’s hard to tell how successful the plaintiff will be. Then again, I’m an examiner, not a lawyer!

  39. Perhaps someone can explain to me what this lawsuit has to do with Title 17. The concept that one can assign all right, title and interest to a third party (without any limitation on any of the rights assigned) and nevertheless remain an “owner” strikes me as, for lack of a better word, “strange” indeed.

  40. I was about to say the same thing. Even if there is a plausible defense for ceasing royalty payments for Judge Duvall’s widow, is that the right thing to do? Pretty bad PR, it seems to me.

  41. Was that written by a lawyer or was it written by an executive relying on advice of counsel?

    The way it was written it is unclear whether they were relying on legal advice, or some factual matter that triggered, for example, a condition subsequent set forth in the deal the publishers had with the Judge where the publisher could suspend credit and royalties to the good widow.

  42. A plurality, and just what was Kenyon doing when it was asked about the authorship issue? What it providing legal advice?

    I think they may, just may, have had a conflict of interest.

    Also, the publishing company should have known asking a law firm that stood to gain by what advice it gave was not really seeking legal advice. The whole arrangement was clearly a sham.

    But to the extent that Kenyon undertook to provide legal advice, I would suggest a bar investigation may be appropriate. What appears to have happened here, given the worse case assumptions, brings the legal profession into disrepute.

    Well, perhaps Kenyon was just responding to factual inquiries and was letting the publishing company make the call. That would be entirely appropriate for the firm.

  43. One of the many reasons that lawyers have a bad reputation is responsibility-dodging phrases like “we were forced to conclude”.

  44. IANAE, if Kenyon loses, and I think they should lose, what grounds, if any, are there grounds for disbarring from practice before the USPTO any Kenyon lawyers involved in this decision?

  45. I don’t understand the relationship here between Thomson Reuters and Kenyon & Kenyon. Thomson Reuters was (by way of acquisition of Clark Boardman) the copyright holder, because Duvall assigned it to them in 1989.

    Inconveniently, the agreements between Duvall and the other parties are only excerpted in the complaint and not provided here as separate exhibits.

  46. The complaint is something of a tour-de-force because [it] lists page after page the treatise where Judge Duvall’s original writing is virtually unchanged.

    Of course it does.

    Makes you wonder what kind of “careful determination” went on at Kenyon. Probably some sort of calculation of how much money was being paid to Duvall every year and what they could buy with it.

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