Another Fishy Case

Posted on | October 13, 2008 | No Comments

2008-1562 Fraser v. High Liner Foods
D/MA 06-11644
Judge Rya Zobel

Plaintiffs, the Fraser frères, appeal from the order of Judge Rya Zobel granting certain defendants summary judgment, denying other defendants summary judgment, and sanctioning the Frasers $500 per defendant for being annoying.

This is another case with pre se plaintiffs letting their lack of legal acumen but zeal for litigation get them in trouble.  As this court wrote:

So far this case has been plagued by numerous procedural missteps by plaintiffs which have generated large numbers of motions at great cost to defendants and the expenditure of much time by the court. . . . Plaintiffs needlessly opposed appropriate motions for the admission of counsel pro hac vice and filed inappropriate motions to strike pleadings. It is, furthermore, apparent from their oppositions to the dispositive motions that they understand neither the procedural rules nor the substantive law governing this case. Yet they persist.

This appeal may be short lived–the court’s order clearly didn’t dispose of all claims so the appeal looks to be premature.

Plaintiffs own 4,781,930, directed towards a method of preparing a fish product.  The single claim is:

[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 patent expired in November 2005.  Defendants–including Gorton’s, ConAgra, Pinnacle Foods and High Liner Foods–are, or were, in the frozen fish food business.

The court dismissed the claims against two of the defendants because they were apparently dissolved and/or discharged in bankruptcy several years ago.

As to the others, the court was very critical of plaintiffs’ theory, which, the court said, appeared to disregard the claim language and the order of the steps claimed, instead focusing on whether oil was used.  The moving defendants all submitted declarations showing that their current processes were material different from the claim and could not infringe.  While the court generally agreed, the respective motions for summary judgment were denied without prejudice.

Why?  Because the motions focused only on the defendants’ current process, and not those used prior to November 2005.

More reading:

Order

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