Case dismissed as sanction for misrepresentations

Judge Keith Ellison issued a scathing order dismissing a patent case after it had been tried to verdict.  Tesco Corp. v. Weatherford Int’l., Inc. (S.D. Tex. Aug. 25, 2014).  Four days into a three-week trial over infringement of some patents relating to drilling rig equipment, an inventor testified that a brochure that constituted 102(b) prior art showed his invention.  The following day, a Friday, patentee’s counsel told the court he would spend the weekend getting to the bottom of the facts about it (there was even a dispute over whether the brochure had been produced to the defendants).

Come Monday, the patentee’s lawyer said that the brochure had been rendered by someone else, Karr, not the inventor and that Karr would unequivocally, no doubt, for sure, and so on say that it was not the inventor’s device.  Trial proceeded.  There was a mixed and inconsistent verdict rendered by the jury.  Rather than enter judgment, Judge Ellison let the case proceed to other issues.

After trial during discovery relating to exceptional case and inequitable conduct, Karr testified that he had had nothing to do with the brochure and that everything the patentee’s counsel had said was false.

The defendants, not surprisingly, moved for sanctions.  Making matters worse, in opposition to those motions, the patentee’s counsel quoted portions of the deposition excerpts that, Judge Ellison felt, were at best misleading.

In this order, the judge dismissed the claims with prejudice, holding that nothing less would protect the judicial system.  It then invited motions for attorneys’ fees to be submitted.  Stay tuned.

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

131 thoughts on “Case dismissed as sanction for misrepresentations

  1. 6

    Wow. What a colossal waste of time. Have you guys ever sat back to look at yourselves? It’s like watching a room full of 6 year-olds arguing about who smells worst.

    1. 6.3

      MM has been here for at least 5 years. This blog was much more civil and useful before he showed up.

      Some suspect that he is a anti-software troll who is being paid to blog. Others suspect that he is with the USPTO (and has a LOT of time on his hand). My suggestion is to just ignore him — of if you do engage him, don’t get caught up trying to change his mind.

      Regardless, MM gets away with the type of comments that would be banned by the vast majority of moderated blogs. However, he has been blessed by the owner of this blog, Dennis, and there is little we can do about him.

      1. 6.3.1

        It’s much more fun sticking a fork in Malcolm’s eye and highlighting his duplicity and banal1ty.

        As you point out, he won’t be going away (even if everyone ignores him), so why not have a bit of fun at his expense?

        Come on, didn’t you enjoy it when he attempted a substantive discussion and volunteered his admission against interests of knowing and understanding the exceptions to the judicial doctrine of printed matter?

    2. 6.4

      >Wow. What a colossal waste of time. Have you guys ever sat back to look >at yourselves? It’s like watching a room full of 6 year-olds arguing about >who smells worst.

      Pretty much true of 90 percent of the posts. 10 percent are OK.

  2. 5

    Planet Bingo argues that “in real world use, literally thousands, if not millions of preselected Bingo numbers are handled by the claimed computer program,” making it impossible for the invention to be carried out manually. Appellant’s Reply Br. 14. But the claimed inventions do
    not require as much. At most, the claims require “two sets of Bingo numbers,” “a player,” and “a manager.”

    So were the attorneys who made that “impossible to be carried out manually” argument to st 00pit to understand how claims are construed, or were they lying?

    Seems like a sanctionable argument to me. The fact that this exact same “pretend that the claims are sooper technical and complicated” tactic is routinely employed by patentees doesn’t make it more worthy of respect.

    Judges need to learn how to shut these bttom-fee ders up. It’s not going to happen with “gentle reminders”.

    1. 5.1

      >>Judges need to learn how to shut these bttom-fee ders up

      I wish someone would pull the plug on your revenue stream for posting on this board. With people like you engaged it is impossible to have real debate. You dirty this forum.

      1. 5.1.1

        Of course the reason you are the way you are is that you couldn’t engage in real debate as you would lose. (But, wait Ned thinks you are a swell guy.)

      2. 5.1.2

        With people like you engaged it is impossible to have real debate

        That’s kind of the point for Malcolm, isn’t it?

      3. 5.1.3

        With people like you engaged it is impossible to have real debate.

        So says the brotards who compared critics of our broken patent system to “fundamentalist ra pers and killers in Iraq.”

        What a incredible pair of hypocritical dooshbags.

      4. 5.1.4

        your revenue stream for posting

        When you promulgate this insane horseshirt you’re only revealing your own selfish motivations to everyone.

        Not everybody is like you, thank goodness. Most of us are far more intelligent and far less inclined to lick the bottom of the fishtank just because it fattens our wallets a little bit.

        Maybe step outside of your bubble and meet some ordinary people or, better yet, some intelligent people who aren’t personally invested in your warped views about what’s patent-worthy. Tell them about the “rapists and killers” and see how they react.

  3. 4

    The memorandum opinion is worth looking at. Looks like this judge completely lost control of the parties. But when the state bar gets a whiff of this case, there’s a Bracewell & Giuliani partner who’ll be looking for work on oil rigs.

    Judge Ellison: “The Supreme Court explained and the Federal Circuit affirmed, ‘if in the informed discretion . . .’ ”

    Not sure Judge Ellison has a complete, overall picture of the US judicial system and its hierarchy.

    1. 4.1

      “Not sure Judge Ellison has a complete, overall picture of the US judicial system and its hierarchy.”

      For everyone who can’t get that what SCOTUS says goes, period, it would appear that the patent bar doesn’t get the complete, overall picture either.


          I thought it was the final arbitrator. And what it says goes …

          Until a later SCOTUS decides/moderates that ruling, or until Congress changes the law. And the court CAN decide that the law is unconstitutional.

          Even I learned that much from high school civics class.


            You don’t get the concept behind checks and balances either….

            jesse – your logic needs some serious work.


              Haven’t seen anything wrong with my logic.

              all you have done is say it is wrong. And “because I said so” doesn’t count as that is not logical 🙂


                Of course you have not jesse – at least I think enough of you not to be like Malcolm and post in an openly dishonest manner.

                You just happen to be an honest clueless dolt. – Lots of lemmings like you.

                (and telling you what the law is is not “because I say so.”

                A little gift: read and then come back
                link to

                1. I have read.

                  And what I’ve read from various sites indicates you are not quite telling the truth.

                  Second, a statement of “law” that doesn’t match reality is an assertion. In fact, all law is based on assertions (much like math)- some of them are even invalid.

                  Math attempts to identify and show the invalid assertions – which are then removed.

                  As I have always understood it, the ultimate court in the US is the Supreme Court, whose decisions are by definition “ultimate”, so their decisions are final. The checks on it are from Congress which can decide the definition of a law – but it is still the courts that have to handle the arbitrary mismatches between reality and the law, and one law and another (which is one reason the places that have laws requiring a footman to precede an automobile are ignored, it is illogical).

                  The science of computation is a field of mathematics. A law declaring software (part of the field of computation) is hardware is an assertion – and not based in fact. Software (as we now call it) has existed since about 1800 and is how computation of ballistic tables, navigation tables, and even other math tables (such as sine/cosine/tangent/roots/differences…) have been created. At that time a “computer” was a person following the sequence of rules for the procedure (the software). Charles Babbage translated those rules into wheels and gears to create a mechanism – at least for the difference tables :), and he conceived (and designed) what is now called a computer. There is even an experimental project that is trying to actually build it.

                  Now such “software” procedures were not original even then – there is some pretty good evidence that similar procedures go back to around the 6th century BC or earlier (use of trigonometry in Egypt).

                  Copyright/patent law is much more recent… but doesn’t seem to have caught up with mathematics as far as quality of development, hence the illogic in some of its assertions.

                  Complaining about the correction by the court of some of the illogic is… a bit illogical.

                  It happens quite a bit in the field of math. One persons proof may be shown to be incorrect by another persons analysis. Exactly the same thing happens in programming (only there is called a “bug”).

                  I do accept that you don’t have to like it.

                  But calling names is also not logical.

                2. The science of computation is a field of mathematics.
                  So what. Biotechnology is a field of biology … which has been around for how long?

                  Software (as we now call it) has existed since about 1800 and is how computation of ballistic tables, navigation tables, and even other math tables (such as sine/cosine/tangent/roots/differences…) have been created.
                  You seem to forget that patent law also protects PROCESSES.

                  I would respond to the rest of your post if you had some relevant points to make — you didn’t.

                3. No, I didn’t forget.

                  You forget the difference between a description of a process, and a process.

                  You don’t patent the description.


            I appreciate the stalking love you have for me, but if you cannot even get basic points down, I am just going to have to ask you to return to slashdot.

  4. 3

    This plaintiff-patent owner attorney and his firm that are the subject of this judical sanction decision should be publicly named, including here, since that is already of public record in the S.D. TX D.C. The only attorney identification of any kind that I could find in or on this attached opinion itself is a “Mr. Ballard” reference in an exerpted testimony question.

    1. 3.2

      John Luman, co-counsel is also mentioned.

      Gamesmanship like this is appalling – and no less for a statement like “Finally, Tesco argues that any misrepresentations it might have made to the Court did not make a difference because it never made them in front of the jury

      In – or out – of the court, such duplicity is reprehensible. While the court was naturally concerned with its proceedings, and reached a severe penalty for reasons listed in regards to the matter being in court, advocates should recognize that “being in court” is not a limiting factor.

      Outside of the court (like on this blog), several, um, supposedly attorneys routinely “affirmatively and knowingly [misrepresent]” law, facts, and what others post.

      The testimony reveals that this is not a simple case of innocent mischaracterization.” – likewise to advocacy on these boards.

      The Court is entirely confident that the conduct that it finds so troubling is entirely out of character for the attorneys.” Not so with the ill actions of those advocating on these boards.

      We all know who comprises this little circle.

      1. 3.2.1

        Outside of the court (like on this blog), several, um, supposedly attorneys routinely “affirmatively and knowingly [misrepresent]” …facts….

        “Hardware and software are equivalent!”

        Except when they’re not. Oops.


          Except that they are.

          Do you need to have your hand held as to the difference between equal and equivalent?

          Sort of like the difference between clue and requirement?


            Never seen software as either equal or equivalent to hardware.

            I have seen software WITH hardware provide equal capability as other hardware…

            But software in and of itself doesn’t do anything.

                1. machine components are manufactures in their own right – and just like a rivet is “meaningless” on its own, so too, anything “on its own” is not determinative.

                2. machine components are manufactures in their own right – and just like a rivet is “meaningless” on its own, so too, anything “on its own” is not determinative

                  Determinative of “what”, Billy?

                3. too nuanced for you

                  Not at all. Just answer the question.

                  What’s the matter, Billy? Is your mommy taking a nap so she’s unable to help you with your English language issues?

                1. poor jesse, still trying to play in a terrain he just does not understand.

                  Malcolm, be a dear and explain the controlling law as to the exceptions to the printed matter doctrine to our friend from slashdot, won’t you pal?

                2. still trying to play in a terrain he just does not understand.

                  And there Billy goes again, reading from the patent t e a ba gg er script, right from the top: “You don’t understand the technology” or “You don’t understand the law”. Rinse. Recycle. Repeat.

                  What’s really being said, of course, is “Stop bringing these issue up because waaah!!! waah!!!”

                3. And as for understanding “technology” I note that the last time you attempted to even define the word you ventured into the scientific method, from whence I handed you your @$$ on a platter by showing you that business methods have used the scientific method since at least the days of Demming.

                  You quickly ran away from that conversation.

                4. And just what “physical structure” does software relate to?

                  There isn’t any. If you count the CPU as a physical structure (fine), then ALL software relates to a CPU… except, that it doesn’t.

                  Mathematical expressions never have. It always requires something OUTSIDE the math to translate to or from the symbols of math.

                  The CPU is just a symbol processor (actually, just an emulation of a math processor)

                5. jesse,

                  There is no such thing as software “in the mind.” Such is only the thought of software.

                  Much like the ability to obtain copyright protection, software must be committed to a tangible media.

                  Read Sun Tzu – then realize why this foreign terrain (foreign to you) poses such calamity.

                6. Read Sun Tzu – then realize why this foreign terrain (foreign to you) poses such calamity.

                  Take your head out of your axx, Billy, and then realize why your endless j nk patent lovin’ b.s. has wasted everybody’s time for years.

                7. “Much like the ability to obtain copyright protection, software must be committed to a tangible media.”

                  That is why software can be copyrighted. As can mathematical writings…

                  But that doesn’t mean it should be patentable… software, even when on tangible media, still has to be read by something, and interpreted by that something. And it doesn’t matter whether that something is human, chimpanzee, or a CPU.

                  Even software “on tangible media” is still nothing but symbols, just like any writing.

                8. math cannot be copyrighted jesse – and (again) you miss the point that copyright and patents protect different aspects – as I am sure that you are aware that software can earn both patent and copyright protection, right?

                  And it doesn’t matter whether that something is human, chimpanzee, or a CPU.

                  Actually – that matter IS critical. That’s because the law allows for machines (and machine components, like software).

                  You really need to understand why you are failing here.

                9. …and as for the “just writing” – there again your ignorance of the law trips you up.

                  Funny, I invited Malcolm to explain this to you, seeing as how he has admitted to knowing and understanding the controlling law on this topic. I wonder why he is letting you down….

                10. Anon – it isn’t exactly foreign territory.

                  What IS foreign is your imposing a law that doesn’t apply to MY territory.

                  I understand software quite well.

                  You do not.

                  I don’t attempt to impose software rules on law, yet you are attempting to impose law on software.

                  And mathematics has always been subject to copyright. Every mathematical proof in existence (well, since copyrights anyway). Even lawsuits over it (usually called “plagiarism”). But you can check the history of Elsevier for that.

                  Now derivatives of proofs are still created. Just as novels are still created.

                  There is also the Curry–Howard correspondence that shows programs and mathematical proofs are the same kind of objects.

                11. The mix of both is foreign territory.

                  You think that your view of tech is sufficient.

                  Clearly, it is not.

                  You think that your “logic” can cover both – and this displays a fundamental weakness in the very thing that you seem to want to prize: logic.

                  That you fail to see this and persevere in your inanity is proof that you do not grasp just how very wrong you are.

                12. Nobody could have predicted Billy would return to the top of his patent t e a b a g g e r script and accuse jesse of being too st 00pit to converse with.

                  It’s that Billy does. It’s what Billy was taught to do by his hero.

                  Keep up the great work, Billy. It’s been working wonders for you so far.


                13. Because Malcolm wants to borrow Ned’s “6-must-be-a-genius-because-he-agrees-with-me” and think that silly jesse has a clue in the legal world…..

                  Good luck with that.

                14. “There is no such thing as software “in the mind.” Such is only the thought of software.”


                  Even while in school, we evaluated software “in the mind”. Yes, we had to use pencil and paper… But the computer being studied did not exist. It was just a mathematical construct. Our studies were of the “how do you do X” given the construct.

                  You need to visit an introductory class on lambda calculus to see just how “in the mind” software is.

                15. jesse – evaluating is not software.

                  thinking is not software.

                  Please provide a piece of software that is not a machine component.

                  (ps, I do not need a class on lambda calculus thanks – you need a class on reality and how to say no to the Kool-aid that you have become addicted to)

                  And yes, you really do need to recognize that applied math is fully patent eligible. Hint: the key is the “applied” part.

                  And yes, you really do need to recognize that well over 90% of patent claims of any value are abstracted up at least one and often several rungs up the ladder of abstraction.

                  Notwithstanding the “support” of the anti-patent Malcolm, these are basic principles in patent law that apply across the board (and not just in the software arts).

                16. “Please provide a piece of software that is not a machine component.”

                  No problem.

                  (x, y) \mapsto x \times x + y \times y

                  No machine component anywhere. Not a semiconductor or memory location, nothing.

                  Yet, as an expression of lambda calculus, it also works as software without changes.

                  “Hint: the key is the “applied” part.”

                  Math can be applied in many ways… But math in and of itself is not “applied”. It is just math. Formulas should not (according to the judge) be patentable. Whether they can be used to describe forces on a bridge or not.

                17. works as software


                  It is either software or it is not.

                  By definition software is a machine component.

                  You FAIL.

                18. “By definition software is a machine component.”

                  No it isn’t. That would be like claiming an accountants record book was a “software component”. Sorry, it isn’t. Quite possibly that is why lawyers fail at software. You ASSUME that because YOU think such is the case, it MUST be the case.

                  As shown by the Curry-Howard correspondence – there is no difference between math and software.

                19. Yes.

                  It is.

                  If you cannot even get that much, your “expertise” even in a technical sense is nonexistent.

                20. there is no difference between math and software.

                  LOL – kiss copyright goodbye then too, as I am sure you are well aware of, you cannot copyright math.

                  Or didn’t you know that?

                21. There is a LOT of copyrighted math.

                  Elsevier has tried to prevent owners from publishing over it.

                  Or didn’t you know that?

                22. Math cannot be copyrighted – you should know that.

                  Step up your game – this is easy and basic stuff.

                23. “Math cannot be copyrighted – you should know that.”

                  You are misrepresenting things, as I expected.

                  Single math expressions, even entire formulae are not copyrightable as a statement of facts…

                  And english expressions, even entire sentences are not copyrightable as a statement of fact either.

                  Yet, entire works of math ARE copyrightable, just as entire articles of history written in english are copyrightable.

                24. “It is math – or it is not math.”

                  Oh it is math. And math publications do copyright it, as to mathematicians. After all, ANYTHING written since about 1975 has automatically been copyrighted by the author, and written math is, well, written. And like anything written, it MAY contain parts that are not covered. In the case of math (like news stories and history ought to be) there is an organization applied, and a logic applied to show the steps from one element to the next.

                  Your derision of math by claiming it can’t be copyrighted would be the same as my claiming history texts or news stories cannot be copyrighted simply because they contain facts.

                  Both are wrong.

                  It also appears to show you don’t know very much about math or software, and possibly even copyright. At worst, it shows a shyster mentality.


              This is not entirely academic, as it is one of the issues with Beauregard claims, in which no machine is actually claimed. A true Beauregard claim is to novel software conventionally written on conventional storage media, which software could and might be used to controll a machine, and thus can be asserted as infringed by someone merely selling the media with that “written matter” on it even if the alleged infringer is not a person using it in a machine.


                It’s not academic at all paul – last I checked, a manufacture (which is what a machine component is, fits the statutory category aspect of 101 fully).

                Of course, those who are interested in NOT misrepresenting my views will fully realize that merely meeting a statutory category is not enough to meet the legal requirement of 35 USC 101 (there is the utility aspect).

                1. You did the same clown dance, Billy, in the run up the Prometheus.

                  All those [oldstep]+[newthought] claims are still dead as doornails, just as I told you they were.

                  See how that works, Billy?

                  You just keep your head up your axx where it’s warm and safe. Your hero Big G probably sounds a lot like God himself from inside there. That would explain a lot, wouldn’t it, Billy?

                2. LOL – trot out the vap1d “ [oldstep]+[newthought]

                  Hey – you about ready to answer that simple yes/no question concerning the counterpoints I have posted many times to your ultimate banal pet theory?

                  That too was a question that you ran away from.

                3. You are already hogging all the doubling down – and you still have not answered me (in what amounts to an answer on this planet called Earth, anyway).


            Do you need to have your hand held as to the difference between equal and equivalent?

            Tell that to the judge, Billy.



              you have volunteered admissions against interests

              Again with the pat th0 l0 gical l y ing. You really can’t help yourself.

              Get medical help, Billy. Or maybe you’d prefer to be helped along that path by a judge? LOL. As if anyone would ever hire you you speak on their behalf for any purpose whatsoever.


                Again with the accusation of 1ieing – for which you have NEVER shown an actual 1ie.

                Don’t you get tired of being so wrong so often, Malcolm?


                wrong so often


                Gee, Billy, if 2014 is what it feels like to be “wrong” about the worst j nk patents out there, I can hardly wait to be even more wrong.

                Too funny.


          Tune in next time when Billy teaches everyone how you can train your mailroom staff to screen registered letters sent to you by other attorneys so you can avoid learning about annoying prior art. It really works and there’s nothing unethical about it!

          So says Billy.


              mischaracterize that conversation

              Please tell everyone exactly what’s being “mischaracterized”, Billy.

              Otherwise it’s safe to assume you’re just digging a deeper hole with more of your pa the tic l i e s.

              Because you really are a mentally ill t 0 0 l, Billy. I think the words “crazy person” were suggested at one point by someone here. Probably a “biased” person, tho, right?



                the rest of the story

                You mean the part where you spent years here tr0lling this blog under 40 nyms a day, denying that you were doing that and pretending that you were doing battle against a “vocal minority” while insulting anyone who disagreed with you about, e.g., the ineligibility of Prometheus’ claims?

                You want to hear that part of the story again? That is one of the best parts. Maybe next week we can get into that.

                1. Goalposts – they keep on amoving

                  No Malcom the rest of the story on the letters sent in the name of another attorney in order to trick someone.

                  As far as sockpupppets go – you are the reigning KIng of them – just ask Vivika M, Friend(s) of the Court or any of the legion you use over at PatentDocs to spread that bana1 pet theory of yours (you know the one – the one that you run away from my counterpoints from).

                  You were saying….?

                  Yeah, thought so.

                2. trick someone

                  Please explain this “trickery” Billy to everyone.

                  And don’t forget your shovel. You’re going to need it.

                3. You are the one that engaged in rampant sockpuppeting, Malcolm – and that was after whining incessantly here about how sockies were “the worst thing ever”

                  What a Fn hypocrite.


          If the role of a piece of hardware is taken over by a piece of software (which happens all the time) they are equivalent and should be treated the same from a patentability perspective.


            It shouldn’t be. A piece of software can’t substitute.

            What CAN substitute is an interface device.

            But software itself can’t.

            And that same identical software can be used without that interface.

            Now used as a description of a condition shouldn’t be a problem. Or even used as a description of a process maybe.

            But you don’t patent a description. That would be like patenting a string of the English language.


              you remain clueless as to the nature of software, jesse, as well as the nature of law

              Sorry dude – but software is manufactured by man for a set utility – the very thing that the patent system is built for.


                sorry – But software still can’t do anything.

                It takes an interface device.

                And math is excluded from being patented – and software is still just math.

                1. To use the analogy you appear not to be able to grasp, a race car tire – patentable as a manufacture in its own right – cannot “do” anything without the car.

                  Software is not math.

                  (plus you still run into the other problem of yours in that you are not allowed to copyright math)

                  You are showing your ignorance on multiple fronts jesse.

                2. Actually, the car can.

                  Even without tires – it can still move. It can still kill people.

                  Your ignorance of reality is really strange.

                3. I need not explain anything to the publishing companies as they don’t buy into your odd “software is math” mindset, so they do not have the problems that you would have.

      2. 3.2.2

        Judge gives five hundred answers to Billy’s questions over the course of a one-month trial.

        After Billy gets his a xx handed to him, Billy whines to the judge: “You never answer any questions!”

        And then he writes a long blog comment about noses of wax and impeachment.

        Priceless stuff.


          LOL – that’s a pretty fantasy life you got there.

          Tell me exactly when I have ever proffered the impeachment angle.

          You will not because you cannot.


            Tell me exactly when I have ever proffered the impeachment angle.

            B-b-b-but what about the C-c-constitution, Billy? The Royal Nine and the nose of wax and your fundamental right to sue people for patent infringement? What are you going to do, Billy?

            Write a stern letter?



              Lot’s of dust-kicking, and yet, you have not actually stated the point that I proffered the impeachment angle.

              Is this too, one of your fabled “answers?”

              No wonder you are a legend in your own mind.


                No wonder you are a legend in your own mind.

                . . . says the contributor who habitually compares himself to Galileo?

                Let’s throw in a “KA-BLOOEY!”, while we’re at it.

                1. the aspect of the personal reference is what you glom onto – and that is exactly what you need NOT to glom onto.

                  Very much like your thinking of just because I say a fact, then that saying is just a mere opinion, you do not seem to grasp that there is an objective world out there beyond the conversation participants.

                  Wake up son.

                2. Anon: “LOL – you just don’t get the reference, do you?

                  Of course I do. You’re inferring that beliefs that conflict with reality do not change that reality.

                  Anon: “the aspect of the personal reference is what you glom onto – and that is exactly what you need NOT to glom onto.

                  The personal reference aspect, where you are casting yourself as the helio-centric Galileo, and anyone who disagrees with you as his earth-centric oppressors, is demonstrating the very height of arrogance, and it is where you are going tragically astray when you deploy that quote. No-one but you would put you in Galileo’s shoes.

                  Anon: “Very much like your thinking of just because I say a fact, then that saying is just a mere opinion . . .


                  Anon: “. . . you do not seem to grasp that there is an objective world out there beyond the conversation participants.”

                  An objective world where merely assigning abstract meaning to data creates new objects?


                PAY ATTENTION.

                You’re the only schlub ranting away in the rubber-walled room, Billy. Maybe take the opportunity to actually respond coherently.

                I realize I’m making a huge assumption there.

                1. I have responded coherently Malcolm – maybe you want to revisit the thread herein (before your pal tried to derail it):

                  Tell me exactly when I have ever proffered the impeachment angle.

                  You will not because you cannot.

    1. 2.1

      Joe, you don’t if consistent prior statements were not on the record, but it appears to me from what it says in the opinion that there was not just one witness, and not just one fact allegedly represented in court, and that both witnesses were under oath and consistent, per this decision.

    2. 2.2

      Either the witness or the attorney is a liar. Since the attorney stood there in open court and misrepresented the deposition statements that were right there in front of everyone, I know which way my money’s going.

      This seems pretty straightforward to me. At a critical moment in the trial, to prevent what would could easily have been a JMOL in favor of the defendant, the attorney stated that he had talked to Witness A and that Witness A would testify, unequivocally, to X. Witness A is not produced at trial, apparently due to time reasons. When he is later produced, he says the opposite of X, and says that this is what he told the attorney in the first place. Even if Witness A is lying, confused, etc., the attorney/plaintiff influenced the trial with attorney statements that they couldn’t back up.

    3. 2.3

      I think you’re absolutely on to something, Joe. I’ve softened my view of Mr. Ballard. I think he got rolled.

      At trial Tesco’s own witness and a co-inventor, Nikifourk, said the brochure was produced prior to the on-sale bar critical date, and that’s were the wheels started coming off of Tesco’s case.

      Judge Ellison: “If the August 2002 brochure indeed showed the CDS with link tilt invention prior to the on-sale bar’s critical date, then the patent would be invalid. See 35 U.S.C. § 102(a)(1). Accordingly, the importance of Mr. Nikiforuk’s declaration is impossible to overstate.”

      Given that the whole analysis here is about the graphics in the brochure, we have to presume the text did not disclose the invention. I did not see a word in Ellison’s summary about what the text of the brochure said. Seems to me that that might have been minimally relevant – especially if there was no written description of, and no mention of, the CDS link tilt, which was the invention. How can you be selling an invention through a brochure that doesn’t even mention the invention?

      After the weekend following Nikifourk’s bomb-shell, Ballard told the court that during the break they found out that Don Karr was the “animator who actually did the rendering” and that Karr said the “rendering is not the invention.” So, Ballard wasn’t talking about the brochure text here, just the rendering. The broader question of who produced the brochure wasn’t really relevant as to Ballard’s alleged falsehood. I find Ballard’s use of the words “animator” and “rendering” odd because we later learn these are photographs. Maybe he was just doing lawyer-speak.

      Ballard then referred to a second guy involved in “the rendering” – Orcherton. This guy never comes up again in Ellison’s memorandum, which seems to me to be a huge snip from the story. Which side did Orcherton come down on? Did he testify at trial? Was he deposed post-trial?

      Ballard told the court that both Karr and Orcherton were willing to come to the trial and testify that the image was not the invention – and that’s critical.

      So one must conclude that over that weekend Ballard or his staff must have talked to both Karr and Orcherton – or to a third party who talked to them and relayed what they said to Ballard. As I piece it together, that third party was “Mr. Luman.” At any rate, somebody must have told Ballard that Karr/Orcherton did the “rendering.”

      I can’t believe Ballard would have gone back into court on Monday and intentionally twisted their statements 180 degrees, knowing full well that they would be called to the stand – which is what Ballard offered to do. That makes no sense at all. None. I mean Ballard certainly would not put a pistol to his head by telling the court the opposite of what his witnesses would testify under oath.

      Ellison’s memorandum then jumps to post-trial discovery in which Karr is deposed by the defendants. But Ellison cuts the deposition to pieces so you can’t really follow it. The bits of the deposition that Ellison cherry-picks jump back and forth from who created the image to who created the brochure – quite distinct issues, but treated as equivalent. Karr also said in the deposition that 95% of the photographs in the brochure were his, and yet Ellison takes issue with Ballard for alleging that Karr “did the rendering.” And the reason I say that is because Ellison starts to look less than wholly reasonable on close inspection.

      But here’s the clincher – which Ellison simply ignores: in the post-trial depo Karr says he looked at the brochure image and could not say one way or the other whether it even shows the invention. The image was “too poor” he said, and the relevant structure was blocked by a mast. So Karr, the photographer who did 95% of the photographs, said the image was too poor to determine whether or not it was the invention. Does that sound like a sales strategy – hide your product behind a mast in a poor quality photo?

      IOW the brochure is likely worthless as 102 prior art or as evidence supporting the on-sale bar. Ellison provides no indication that anything in the brochure actually represented an offer to sell the invention. This whole brochure brouhaha would be called a “red herring” where I come from.

      But my point is (I think) that Joe’s question is bang-on. When Ballard talked to Karr and Orcherton – or more likely Luman – on the weekend, Ballard was told that Karr/Orcherton did the brochure and the brochure did not show the invention. On Monday Ballard told the court that and offered to bring them both in to testify at the trial. But in the post-trial deposition, Karr either modified his story or told a story different than the one Luman told Ballard.

      We don’t get enough of the deposition to know exactly what Karr’s entire story was, but we can see that the deposing counsel was shoveling the answers into his mouth – even interrupting him mid-sentence to interject answers. There was almost certainly an agreement to reserve objections as to form for trial, so you don’t see objections in the transcript, or maybe Ellison snipped them out. Not sure what effect such objections would have in Ellison’s analysis.

      I think Joe’s criminal prosecutor’s instincts are still pretty sharp. Looks to me like Ballard got rolled by his own client and/or his own witnesses. It also looks like the whole brochure thing was a red-herring that worked like a charm. After all, this is Texas. But the CAFC isn’t Texas, and I have my doubts that Ellison will prevail on this one.

      1. 2.3.1

        Babel Boy,
        Based on the Memorandum, I tend to agree with you. It is not a model of clarity, but maybe Judge Ellis only felt it necessary to inform the parties who were present. However, as you point out, a marketing brochure does not an offer to sell make even if, as the inventor said, page 5, it displayed his invention. Of course, if the brochure was part of an offer package and the picture was the only description of what was on offer, it would make more sense. However, Judge Ellis does not make this clear.

  5. 1

    People do and say the darndest things when there’s lots of money at stake.

    Kudos to the judge for doing the right thing.

    1. 1.2

      Note that for ALL of Malcolm’s bluster here, he is trying to shift the focus away from him: he is truly a hypocrite on this matter.

    2. 1.3

      I suspect that anon is actually frightened of software. This isn’t an accusation, a lot of people are.

      What happens to his job when IBM turns its attention to law… specifically, having the Watson software analyze patent law.

      I suspect he would be out of work…

      1. 1.3.2

        No… You THINK you know.

        That is why I said “I suspect”. I don’t know your fear for a fact, only that your statements about math and software are so far from the reality of either, that it appears to be a logical conclusion.


          LOL- you say “suspect” yet jump to the very conclusion that you want to “dance” around.

          Too clever by half – and still totally clueless.


            It is still just a conclusion based on your statements.

            And a conclusion doesn’t have to be correct, there could easily be information not available that could change the conclusion.

            But your very reaction makes it more likely to be correct.

                1. …says the one knowingly engaging in an area of professed ignorance….

                  Your logic is priceless – and obviously, infects your notion of what reality is.

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