Sample Civil Procedure II Exam

In CivPro II (a 2-hour course), we covered civil procedure issues related to class actions, discovery, summary judgment, JML, new trial, appellate jurisdiction, and preclusion. Here is the two-hour exam. – Dennis

052213_1918_SampleCivil1=====

Dent sued Baker in the United States District Court for the Eastern District of Missouri alleging patent infringement. After receiving the complaint, Baker had his production manager (Morgan) review the product sales history. Morgan delivered an internal memorandum to Baker indicating that Baker sold 10,000 allegedly infringing sunglasses in the past year for a total revenue of $85,000. The report was marked "Confidential."

a) What information regarding the sales must Baker include in his initial disclosures under Rule 26(a)? (5 points)

b) Under what circumstances would a Court Order Baker to turn over the report to Dent? (10 points)

c) Assuming that the court has issued what Baker believes is an erroneous order forcing Baker to turn-over the report to Dent. Can Baker appeal that order? (5 points)

= = = =

After trial, a jury returns a verdict for Dent and against Baker (finding infringement). Dent then sues Campbell in the same court also alleging patent infringement.

d) Can Dent assert either claim preclusion or issue preclusion in the case against Campbell? (10 points)

= = = =

In the patent case against Campbell, patent infringement must be proven by a preponderance of the evidence. During discovery, Dent's expert provides testimony that Campbell's products infringe the patent while Campbell does not provide any competing evidence of non-infringement. Dent then moves for summary judgment of infringement. In response, Campbell only argues that a jury will find the expert testimony untrustworthy.

e)     Should the court order summary judgment? (15 points)

= = = =

The United States later brings a criminal prosecution against Baker for criminal counterfeit in United States District Court for the Western District of Missouri.

f) Can the US Government assert either claim preclusion or issue preclusion in the case against Baker? (5 points)

= = = =

Assume that Dent lost the lawsuit against Campbell based on a jury finding that Dent's patent was invalid. Thus, there is one case where the patent was enforced (against Baker) and another where the patent was found invalid (against Campbell). Dent then sued Haseltine in Federal Court in the Eastern District of Texas again alleging infringement of the patent.

g)     Can Haseltine rely on either claim preclusion or issue preclusion in the case against Dent? (10 points)

h)     How can we know if the court was correct to send the question of validity to a jury rather than have that question be decided by the judge? (5 points)

= = = =

The patent right is later fully and finally revoked by the US Patent Office. This means that the knock-off versions are actually legal to manufacture and sell in the US. In reaction, Vincent then files a class action lawsuit on behalf of all sellers of knock-off versions of Dent's sunglasses. The complaint alleges unfair competition based upon Dent's assertion of invalid patent rights and demands that the court force Dent to stop all enforcement activity and compensate businesses who suffered under the enforcement strategy. Vincent's information shows that there are more than 1,000 companies that stopped selling knockoffs because of Vincent's enforcement activities even though Baker, Campbell, and Haseltine were the only entities actually sued.

i)     What are the two most likely sections of Rule 23 that would be used to deny class certification in this case? (15 points)

43 thoughts on “Sample Civil Procedure II Exam

  1. The United States has about 180 B61 gravity nuclear bombs based in Europe. They are the detritus of the cold war, tactical weapons deployed in Belgium, Germany, Italy, the Netherlands and Turkey to protect NATO allies from the once-feared Soviet advantage in conventional arms. But the cold war is long over, and no American military commander can conceive of their ever being used. Even so, President Obama has put $537 million in his 2014 budget proposal to upgrade these bombs. When all is said and done, experts say, the cost of the rebuilding program is expected to total around $10 billion — $4 billion more than an earlier projection — and yield an estimated 400 weapons, fitted with new guided tail kits so that they are more reliable and accurate than the current ones.

    Promote the progress!

  2. What a name patent abuse reduction. How about “dopey politician trying to pander to get some money in its pocket.”

  3. except to repeat the name of the imaginary ‘analysis’.

    LOL – it’s the same position you recently moved to in a discussion thread after oral arguments.

    That’s right- this is archived – you moved completely to the position I espouse – the same that you now call ‘imaginary.’

    The word for you (again): hypocrite.

  4. Nice concise prediction. 9-0? We need a tie breaker.

    Come on MM, 6, IANAE, and lot of you! Make your prediction.

  5. SCOTUS will say that you cannot patent human genes.

    Are human genes patentable? That is the question asked and at issue in AMP v. Myriad Genetics.

    To paraphrase the lead in of counsel at oral arguments:

    “One way to address the question presented by this case is what exactly did Myriad invent? And the answer is nothing.”

  6. How about you recognize a well known term of art and not try to throw a briar patch into the discussion like Malcolm (who never seems able to give answers either)?

    You are attempting the same play of trying to turn the question around.

    That ploy is rejected.

  7. why you think being a “product of nature” makes infringement any harder to prove than, say, “product of Company B”

    Here, I’ll even give you a hypothetical. Suppose someone discovers a Roundup-Ready plant, and we somehow know for sure that it’s the product of a natural mutation.

    Now that Monsanto’s seed is a product of nature, how much harder is it for them to prove infringement by Bowman? And why?

  8. focus: product of nature.

    How about you finally explain what you mean by “product of nature”, and why you think being a “product of nature” makes infringement any harder to prove than, say, “product of Company B” (which you can assume is licensed/exhausted and therefore free for the public to use), and then I’ll try to answer your question.

  9. Since Monsanto is not on point,

    Right, because Monsanto wasn’t all about something that could grow all by itself that would be identical to what Bowman was growing in his field. Where Monsanto proved infringement and won.

    reference Chakrabarty.

    Remind us again who was accused of infringement in Chakrabarty, and what difficulties the patentee faced in proving it.

  10. OK – he won’t tell you (not telling, that is, not giving answers is something that Malcolm does excel at).

  11. Ever trying to be the smart-@$$ without the smart.

    Since Monsanto is not on point, let’s look at a SC case that is: reference Chakrabarty.

    Preferably, you will learn the law before posting and displaying your ignorance.

    And if it were so mundane, then why has Malcolm run away from the question from day one?

  12. Really Malcolm?

    Kindly point them out (prior to your insertion at 12:29 in response to iwasthere’s post at 11:12 that did not have those facts.

    Once again, we see you confusing spin (which you added) with facts (here the absence of the strawman phrase you added).

    This is clearly in black and white, Malcolm. Put. The. Shovel. Down.

  13. He keeps on avoiding the simple questions.

    Simpler than you think, too.

    You’re asking how to prove infringement when non-infringing articles also exist. That’s a perfectly mundane issue that patentees have been dealing with since the dawn of time. Anybody with licensed product on the market faces the same issue. You prove infringement by showing that the defendant did something that infringes.

    Also, please provide some caselaw to support your assertion that a patented “product of nature” is “free to use”. Preferably a Supreme Court case more recent than Monsanto.

  14. Speaking about discussions, let’s see Malcolm discuss (without trying to co-opt the question and ask others) how he plans on dealing with proving infringement if he is granted a patent on an item that is a product of nature, given that such items belong to the warehouse of man, and is free to use.

    He keeps on avoiding the simple questions.

  15. adding those extra words

    Those extra words were in the fact pattern we were discussing, d—sh-t.

  16. anon’s analysis

    Is that anon’s “warehouse of nature” “analysis”? The “different in kind” analysis? Or some other “analysis” that anon seems unwilling to discuss in any depth except to repeat the name of the imaginary “analysis”.

    they want something from the iron age

    Structurally defined compositions of matter are about as “iron age” as claims get these days.

    Review the oral arguments again. Both parties (!) and several members of the Supreme Court (at least) agree that “pre-emption” of a “product of nature” is beside the point. In other words, the mere fact that a useful, isolated nucleic acid polymer consisting of a defined sequence of nucleotides also exists in the context of a longer “naturally occuring” genome will not suffice to render the claimed composition ineligible. According to the ACLU’s oral argument, claims to isolated short nucleic acid polymers are more likely to be eligible than longer molecules, even though shorter molecules plainly “pre-empt” more of the “natural” world (because their sequences are more likely to be found in “naturally occuring” genomes).

    All the predictive power won’t count

    That’s completely opposite to the position taken at oral argument by the ACLU. Just fyi.

  17. OK. I did it. I made a prediction. No lording your predictions over me after the decision unless you clearly put your prediction in a blog post.

  18. If had to bet, I’d say they are going to hold it ineligible. I think that anon’s analysis is basically right. They have gone into a something more mode and discount information such as in Funk brothers. They want something from the iron age–not the information age as counting as new.

    So, they are going to say that what is isolated is just what is already there in the DNA and all the techniques to isolate it are old. The sequences are there in DNA. So, what have you got in iron age thinking? Nothing. You have something outside of the DNA that looks just like the DNA in its important parts and the parts that don’t are old. Ineligible. All the predictive power won’t count–information age. All the finding the sequence in the DNA won’t count–information.

    Going to be ugly. That’s my predication. 6-3 decision.

  19. Post-judgment reexam after the patent has been found invalid

    Really? How many reexams have you seen after a patent has been found invalid?

    Nice strawman of yours made by adding those extra words that you slipped in there that no one is arguing for – so nice, it knocks itself down.

    /eyeroll

    Better trolling please.

  20. Post judgment reexamination is just a scandal waiting to happen.

    Post-judgment reexam after the patent has been found invalid is a “scandal waiting to happen”?

    Perhaps the bar for “scandals” is lower than I thought.

  21. Whatever I answer, you are supposed to give me at least a B- lest you hurt my self-esteem and job prospects.

  22. Doesn’t matter. In fact, additional evidence at PTO, over the trial court, would make it even more like Hayburn’s case.

    Post judgment reexamination is just a scandal waiting to happen. Too much discretion given to an executive branch agency to pick favored and disfavored patent owners when there are huge sums at stake.

  23. “Under (i) you just, without question, teach the appropriateness of the PTO overturning a patent after a judgment.”

    There may have been additional evidence in the PTO proceeding.

  24. Under (i) you just, without question, teach the appropriateness of the PTO overturning a patent after a judgment. While I understand this is a civil procedure class and this is actually a cool question. I hope you at least mentioned Hayburn’s case in the class – there is all kinds of fall out from PTO not giving comity to the courts.

  25. You don’t have to take it, NW. You can just submit your standardized test scores for credit.

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