PATalert is tied to the CAFC’s Opinions and Orders webpage, which is usually updated between 11 am and 1 pm US eastern.  Shortly after the court announces the new decisions, our RSS feed will alert you of the decision with case name (hyperlinked to a pdf of the opinion), case number, whether the decision is precedential or not, and the lower court/agency from which the case was appealed.

Please enjoy the service, and please email me if you have any questions, comments or suggestions.

-Kyle

2010-1151 Taylor Brands v.  GB II Corp

Patentee Taylor appeals from the order of Judge Dennis Inman granting GB II summary judgment of non-infringement.  The case involves U.S. Patent No. 6,651,344 which is generally directed to a spring assisted opening knife.  At issue was the claim term “a set block situated at one side of the said blade” and whether the accused knife’s lack of a side set block could infringe.

In claim construction, just like dream analysis, sometimes claim term simply require just what it says.  This appears to be case here based on the Court opinion.

The claims are directed to a spring-assisted opening knife in which the knife blade is set on a pivot and a spring (located in the knife handle) applying tension at the knife base.  When released, the spring pushes on the knife base causing the knife to pivot into the open position.  At issue is the “set block limitation” from claim 1, the only independent claim:

a set block situated at one side of the said blade adjacent to the pivotable conjoinment position of the said handle, with the said set block having a detent notch in the circumferential edge at the confluence of its maximum outer diameter and minimum outer diameter such that when the said blade is drawn out of and extended from the said receiving slot, the said detent notch faces the opposing end of the said receiving slot

The set block is item 7 in the drawing.

GB II’s knife, however, did not have a set block at one side of the blade, but instead used the knife blade base itself.  The court found that the phrase “at one side” actually meant “at one side” and found no literal infringement. As for equivalents, the Court invoked the “all limitations rule”–that equivalents cannot be applied so broadly as to effectively eliminate the limitation altogether–and found that using the knife base and omitting the side set block could not be the equivalent of having a side set block.

2010-1151 SJ Order

page 2

new

2010-1105 Sun Pharma v. Eli Lilly

Eli Lilly appeals from the grant of partial summary judgment by Judge George Caram Steeh finding that certain claims of its US Patent No. 5,464,826 invalid for double patenting.  The case arose from Sun's ANDA filing seeking to market a generic form of GEMZAR, Lilly's gemcitibine cancer medication.  The matter is on appeal following the entry of this judgment under Rule 54(b).

The prior patent at issue is 4,808,614, titled "Difluoro Antivirals and Intermediate Therefore" and generally discloses certain anti-viral nucleosides.  One of the disclosed (and claimed) compounds is gemcitibine, which the '614 specification further describes as having "excellent oncolytic activity in standard cancer screens.

Sun argued that Lilly obtained the '614 patent for the compound gemcitabine as an anti-viral and anti-cancer drug, then improperly extended its monopoly over the compound by obtaining the '826 patent claiming a method of using gemcitabine to treat cancer.  Pfizer, Inc. v. Teva Pharmaceuticals USA, Inc., 518 F.3d 1353 (Fed. Cir. 2008); Geneva Pharms., Inc. v. GlaxoSmithKline PLC, 349 F.3d 1373 (Fed. Cir. 2003).  

Lilly countered that it disclosed the anti-cancer use in the '614 patent specification to avert any "best mode" challenges to the validity of the '614 patent, but relied on the anti-viral utility of gemcitabine to obtain the '614 patent. Lilly maintains that, because the anti-cancer use of gemcitabine set forth in the '614 patent specification was unnecessary to support the '614 patent, the anti-cancer use was eligible for later patenting in the '826 patent.  In re Kaplan, 789 F.2d 1574 (Fed. Cir. 1986).

An obvious-type double patenting analysis requires construing the relevant claims of the earlier and latter patents and determining their differences, then determining whether the differences render the claims patentable distinct.  The main contention between Sun and Lilly was whether the court could look to the specification of the '614 patent for the "anti-cancer" disclosure.  (Opinion, pp. 5-8.)

After determining that it could look to the specification, the court found an overlap of coverage between claim 12 of the '614 patent and claims 2, 6 and 7 of the '826 patent render the latter invalid:

Indeed, there is an overlap of the identical "pharmaceutically effective amount" for anti-cancer treatment in the '614 Patent is repeated in the '826 Patent. A "claim to a method of using a composition is not patentably distinct from an earlier claim to the identical composition in a patent disclosing the identical use." Pfizer, Inc., 518 F.3d at 1363 (quoting Geneva, 349 F.3d at 1385-86).  Construing Claim 12 of the earlier '612 Patent and Claims 2, 6 and 7 of the later '826 Patent, the court finds they are not patentably distinct as a matter of law.  Pfizer, 518 F.3d at 1363.

It would shock one's sense of justice if an inventor could receive a patent upon a composition of matter, setting out at length in the specification the useful purposes of such composition, manufacture and sell it to the public, and then prevent the public from making any beneficial use of such product by securing patents upon each of the uses to which it may be adapted.

Geneva, 349 F.3d at 1386 (quoting In re Byck, 48 F.2d 665, 668 (CCPA 1931)).

Opinion, p. 8.

2010-1105 Opinion

Vita-Mix has appealed from Judge Patricia A. Gaughan’s judgment of noninfringment and denial of Vita-Mix’s cross-motion for summary judgment of infringement.  Defendants (Basic Holding, West Bend Houswares, Focus Electrics, and Focus Products Group) have cross-appealed the Court’s grant of summary judgment on validity and enforceability and the corresponding denial of their cross-motions on those issues.

Whew!  Let’s just get this out of the way up front (since Judge Gaughan did the same in her opinion)–this case had a ton of motions.  In sharp contrast to Kyle’s on-going series about sealed documents in the Eastern District of Texas, I had more than enough reading material to keep me up late.  (Note to self:  the next opinion that begins "[t]his matter is before the Court upon 15 motions–ten motions for summary judgment and five related motions" goes to Kyle.)   

So what prompted this brief-a-palooza? Smoothies. Well, more accurately, "high-end kitchen blenders."  Vita-Mix is a leading manufacturer of high-end blenders.  And in the interest of full disclosure, I own one.  It’s great for smoothies.  I can pummel any combination of fruit, dairy, and ice into a healthy frozen drink and pawn it off on my kids as a milkshake.  But I digress. 

Perhaps the most interesting factoid about this case is that a dispute over one claim from one Vita-Mix patent–a method for eliminating "air pockets" from a blender–sparked 10 separate summary judgment motions. 

A Little Blending History:

Early Vita-Mix blenders used a
"tamper"–a wooden stick in my vintage
model–to break up air pockets (apparently a detriment to blenders everywhere).  But Vita-Mix was not satisfied with this solution because it was fleeting  Air pockets kept forming; users kept tamping.

Enter Vita-Mix’s U.S. Patent No. 5,302,021.  While looking for a better solution to the air pocket problem, Vita Mix determined that air channels
formed by a "member" associated with the blades caused these dreaded air-pockets.  To block those air channels, Vita-Mix devised and patented a method using a "plunger" inserted into the pitcher of the blender.  In prosecuting the ‘021 patent, however, Vita-Mix made it clear that "any action to ’stir the contents of the pitcher’ is a ‘materially different process" than using its new plunger method for eliminating air pockets.

Claim Construction:

This "stirring" distinction was essential to the Court’s claim construction.  Judge Gaughan construed the disputed claim to exclude any stirring (a method for eliminating air pockets "not including a method of stirring to disperse, dislodge, or break-up an air pocket after it has begun to form.")  In addition, the claim required two other key elements: (1) the device inserted in the blender must be adjacent and above the rotating blades and (2) the device must be free of contact with the blender’s pitcher.  (Click Here to view the entire claim construction.) 

Noninfringement: 

Defendants, including a former Vita-Mix dealer, manufactured and sold a number of blenders with a "Stir Stick" that is inserted into the blender during use.  Setting aside the obvious semantic challenges, Vita-Mix argued that Defendants’ blenders infringed the claimed method when the Stir Stick is inserted into the blender but not used to stir–i.e., the Stir Stick is held stationary or not touched at all.  Vita-Mix alternatively argued that the user could use the Stir Stick as intended and still infringe if all the other elements were practiced.

Judge Gaughan dispensed with the latter argument first–making clear that Vita-Mix disclaimed all stirring operations.  The Court also noted the inconsistency of Vita-Mix’s "stir" theory–it required the user to stir with the Stir Stick  to satisfy one claim element (eliminating "air pockets") but required the user to hold the Stir Stick steady or not at all to satisfy the others ("adjacent and above the blades" and "free from contact").

Vita-Mix’s other argument–I’ll call it the Hold Steady theory–required it to show that using the Stir Stick, without stirring, would eliminate air pockets.  To support its theory, Vita-Mix took a multifaceted approach. 

• Vita-Mix offered expert opinion that the Stir Stick, when inserted in the blender but not held by the user, infringes the claim.  The Court concluded that Vita-Mix’s opinion was hypothetical and, thus, insufficient to overcome a motion for summary judgment. 

• Vita-Mix offered video of the accused blenders on QVC to support infringement.  Judge Gaughan was not moved.  In fact, her opinion notes that the video shows the Stir Stick being used to stir and, at one point, shows the formation of an air pocket. 

• Vita-Mix claimed that the accused blenders’ operation manual teaches the customer to infringe.  The Court again disagreed, citing instructions to "turn," "rotate," and "move" the Stir Stick during blending.

• Finally, without proof of infringement by actual customers, Vita-Mix conducted a survey to determine if users were "likely to infringe."  Vita-Mix’s counsel constructed a survey with categories such as "held stir stick stationary," "didn’t hold stir stick," and "used stir stick to mix a lot."  These categories were used to record how 100+ people used the accused blenders.  Vita-Mix then secured an expert report interpreting that data.  The Court concluded the report should be stricken based on relevancy–in part, because the expert had no way of knowing if the claim limitations were met based on the survey and survey data. 

With no proof of direct infringement, the Court granted Defendant’s motion for summary judgment of noninfringement on Vita-Mix’s direct and indirect infringement claims.

Validity And Enforceability:

The Court dispensed with Defendants’ invalidity defense largely for lack of proof.  It’s not that Defendant’s didn’t have evidence–they had an expert opinion and testimony.  They just didn’t want to cite to it.  This was not lost on the Court.  In denying Defendant’s motion for summary judgment on validity, the Court noted that Defendants’ choice not to cite their expert’s report or testimony "cannot be ignored." 

Judge Gaughan also rejected Defendants’ inequitable conduct claim based largely on the fact that there was simply no evidence of intent and the allegedly withheld reference was cited in another reference before the Patent Office.

Notes:

All said, my 35,000-foot review doesn’t do justice to Judge Gaughan’s mammoth efforts in this case.  For more information, including some very interesting details throughout the footnotes, I strongly recommend reading Judge Gaughan’s opinion.

And, yes, in case you were wondering, there has been a flurry of post-judgment motions, including a motion for attorney fees.  Check back for updates. 

More Reading:

Judge Gaughan’s Summary Judgment Opinion

Counsel:

For Vita-Mix: McDonald Hopkins, Cleveland, OH (Michael Snyder, David Movius, David Cupar, and Ryan Fitzgerald)

For the Basic Holding Defendants: Workman Nydegger,  Salt Lake City, UT (Larry Laycock, David Wright, Robert Aycock, and Clinton Duke), Calfee, Halter & Griswold, Cleveland, OH (Charles Lyon, George Hoskins, and Jennifer Wick) 

The National Institute for Strategic Technology Acquisition and Commercialization ("NITSAC") appeals from Judge David Folsom’s order dismissing its complaint against Ford Motor Company. 

NITSAC is a not-for-profit organization "formed under the auspices of Kansas State University" (home of the Wildcats) for "facilitating the commercialization of new technologies, through the promotion of related research and education."  And in 2000 it received a healthy charitable donation from Ford, the assignment of four patents (U.S. Patent Nos. 5,239,955, 5,319,919, 5,469,777, and 5,554,020).  For its donation, Ford claimed a tax deduction of $26,950,000. 

In 2006, while trying to license the assigned patents, NITSAC learned that Ford had distributed the patented technology to one of its suppliers.  NITSAC granted Ford a non-exclusive license for the donated patents in April 2006, but Ford terminated that agreement several months later.  NITSAC sued Ford for patent infringement in 2008. 

Ford moved to dismiss NITSAC’s complaint, arguing that the parties’ assignment agreement released all infringement claims against Ford.  Further, Ford argued that Fed. R. Civ. P. 12(b)(6) was the appropriate vehicle for dispensing with the case because the sole issue for the Court was a question of law–the interpretation of the assignment agreement under Michigan law. 

NITSAC countered that the release language only excused Ford from liability for claims arising from NITSAC practicing the assigned patents.  NITSAC further argued that a motion to dismiss under 12(b)(6) would be inappropriate because the assignment was ambitious–and thus involved questions of fact that must be resolved under Rule 56. 

Judge Folsom agreed with Ford on both accounts.  The Court held that Ford’s motion was properly considered under Rule 12(b)(6) because the contract language was clear.  Moreover, Judge Folsom found that Ford’s position regarding a release was supported by the plain language in the assignment.  Section 3.3 of that agreement (quoted in Judge Folsom’s opinion) reads:

For its part, [NISTAC] hereby agrees to release [Ford], it [sic] officers, directors, employees and agents, and each of them, from any and all claims which [NISTAC] might otherwise have against any of them by reason of the practice of [Ford’s] Patent Rights by [NISTAC], its licensees or transferees.  

Citing Michigan law, Judge Folsom held that the term "all" means "no exceptions"–thus NITSAC had released Ford.  While NITSAC argued that the release only covered claims arising from NITSAC’s activities, the Court concluded that NITSAC’s reading would render other provisions of the assignment superfluous.  In support, Judge Folsom cited the section just before Ford’s release, Section 3.1:

[Ford] makes no warranties with respect to freedom from alleged infringement of third party patents or freedom from third party infringers, and [Ford] shall not be under any obligation to indemnify or hold harmless [NISTAC] or any licensees or transferees of [NISTAC] against such alleged infringement claims.

Because Section 3.1 addresses the very issue NITSAC claimed was covered by Section 3.3, the Court rejected NITSAC’s interpretation of the assignment agreement.  Judge Folsom then concluded his opinion with a brief but illuminating discussion of the equities:

The Court acknowledges that from NISTAC’s perspective this result appears unfair in that Ford is able to receive a benefit of a tax deduction without having to forsake use of the technology. However, NISTAC has not been deprived of its value in the patents, mainly to license the patents to anyone else, including Ford’s competitors. Moreover, NISTAC received not only rights to an entire patent portfolio, but also $184,000 to pay for the maintenance fees. Therefore, the apparent harshness of this result is significantly mitigated by the benefit that NISTAC might reap compared with the investment it has put into these patents. Moreover, after making a charitable contribution, it would be even more unfair for Ford to be hailed into court, expend significant time, resources, and money in discovery defending a patent infringement action. Thus, while the interpretation of the contract provisions is by no means easy, as a matter of law, the contract language is ambiguous as to the release.

More Reading:

Judge Folsom’s Opinion and Order

Notes:

• Judge Folsom explicitly declined to address the tax implications of the parties’ spat.
• If facing a motion to dismiss in Texas (or the Fifth Circuit), try this:  "It is recognized that a motion to dismiss under Rule 12(b)(6) is disfavored and rarely granted.  Priester v. Lowndes County, 354 F.3d 414, 418 (5th Cir. 2004)." (Page 3 of Judge Folsom’s Opinion)
• Judge Folsom is a two-time graduate of the University of Arkansas–home of the Razorbacks and the inspiration for the title of today’s post.

Counsel:

For NITSAC:  Fulbright & Jaworski, Dallas (Robert M. Chiaviello, Jr. and Brett C. Govett)

For Ford: Shook, Hardy & Bacon, Kansas City (Eric A. Buresh and Holly L. Teeter),  Parker, Bunt & Ainsworth, Tyler (Robert Christopher Bunt)

Since starting PATracer, we have received numerous emails, calls and comments from people wanting to know how we did this, why we did that, or if Josh can really snowboard.

While some questions are best left unanswered (or unasked), we compiled some of the most common queries and PR answers here.

As always, feel free to contact us with any other questions, suggestions, comments or specific requests.

What is PATracer?

Kyle: PATracer’s "mission" is to report on patent litigation appeals at the Federal Circuit.  Primarily this means covering cases from the district court or ITC.  We:

• summarize the proceedings below and hopefully give a preview of the issues to be decided on appeal.  Usually we offer the key orders or documents for download.  This post is done at or near the time the appeal starts;

• cover the briefing with our "In Brief" posts.  Here, we try to make the briefs available for download and provide the parties’ respective "Summary of Argument"–likely a good preview of the arguments and issues to be decided by the CAFC; and

• notice the scheduling of oral argument.

Josh: For cases that we (or our readers) find extra interesting, we might also report on the oral argument, collateral proceedings, etc.

Also, we might post on topics, statistics, trends and other patent litigation items.

Why "Tracer" when your subtitle says "Tracking Patent Cases"–why not PATracker?

Josh: PATracker.com was already registered, and PatentAppealTracker.com won’t fit on our upcoming line of mugs, sweatshirts, mouse pads and toaster cozies.  So it was either PATracer
or Patently Appealing–which we liked, but it somehow seemed too cliché.

Why did you start PATracer?  For all the fame, fortune, and A-list treatment bloggers get?

Josh: Those were my exact reasons.  I have been sorely disappointed.

Kyle: For me, those things were, like, 3rd-5th on the list.

Actually, several reasons and ideas kind of came together for PATracer: (1) we wanted to know
more about what was happening in the patlit biz at the trial court
level; (2) we like to see the writing, strategery (I know its barely a
word!) and procedures tried–successfully or not–by others; and (3)
wanted to know the kind of issues and topics were floating around the
Fed Circuit before the decisions come out.

What are the "tools of the trade" for PATracer?

Kyle: Peet’s coffee (Major Dickason, Garuda and Arabian Sanani), iPod and MacBook Pro.  We use a number of free Web resources like Google Patents and Altlaw.org for cases, statutes, etc.  And we are heavily indebted to our fellow practitioners for providing information and briefs on the cases. 

Josh: Dunkin coffee, a soon-to-be-retired Dell Inspiron, and (according to iTunes) 49.3 days worth of music.  Currently we are using Typepad for the blogging software.  We also have our own server running Mediawiki–this is where we put the .pdf’s and other documents for download.  Hopefully we can do more with the wiki someday a la SCOTUSwiki.

What’s the background image in the site banner?

Kyle: A circuit diagram for a Fender Bandmaster Reverb amp, circa 1969.

Josh: Don’t worry, it’s changing soon.

Disclaimer: I always feel odd
describing myself in the third person—especially outside of
post-game interviews.  But Kyle refused to write my bio, so I have no
choice. 

Josh is an accomplished federal
litigator and licensing attorney.  With a background in biology and a
serious addiction to computers and electronic gadgets, Josh found IP
trials to be right up his alley.  Before joining the ranks of the
tech warriors, however, Josh cut his teeth as a federal clerk for
Chief Judge Paul R. Matia of the Northern District of Ohio during the
highly publicized trial of John Demjanjuk.  After that, Josh honed
his chops on complex federal suits and big deals at both Jones Day in
Cleveland and Sullivan & Cromwell in New York.  When the siren
call of the courtroom became too much to ignore, he joined Renner
Otto, crossing the country for good times and great results.   

Josh is a member of the John M. Manos
Inn of Court, the Cleveland Intellectual Property Lawyers
Association, and the executive council for the intellectual property
section of the Cleveland Metropolitan Bar Association.  He was also
recognized as an Ohio Super Layers "Rising Star" for IP
litigation.

Josh has spoken to numerous
organizations on topics including patent litigation, Federal Circuit
trends, brief writing, and litigation ethics.

In addition to IP trial work, Josh
counsels clients—big and small—on IP licensing issues, technology
transfers from universities and hospitals, and technology development
agreements.  It keeps him sane. 

Education

J.D. cum laude, University of Michigan
Law School, 1999
B.S. summa cum laude, Biological
Science, The Ohio State University, 1996

2008-1332 Clock Spring v. Wrapmaster

Plaintiff Clock Spring appeals from the order of Judge Vanessa Gilmore–adopting the recommendations of Mag. Judge Mary Milloy–granting defendant summary judgment on invalidity and on plaintiff’s false advertising claim.  The action is the latest in this "serial litigation" between these competitors in the business of "composite sleeve reinforcement systems" for repairing pipes. 

Clock Spring sued Wrapmaster accusing it of false advertising as well as alleging that use of defendant’s PermaWrap product infringed claims of 5,632,307.  On summary judgment, the court held the ‘307 invalid as "used publicly more than one year prior to filing" under §102(b) and as obvious under § 103.

Prior Public Use.  The prior public use was evidenced by a written report from Gas Research Institute on a 1989 demonstration of Clock Spring’s technology.  The report describes the process claimed in the ‘307 (filed in 1992).   Clock Spring countered that (1) the use was "experimental" and (2) the evidence of the prior use was inadmissible hearsay.  The court rejected the "experimental" defense under Invitrogen Corp v. Biocrest, 424 F.3d 1371 (Fed. Cir. 2005), finding the demonstration was both "open to the public" and commercially motivated (done in the hope of obtaining business).

The court likewise rejected the hearsay argument.  While noting that it was undoubtedly hearsay under  Evid. R. 801, it  fell within the exceptions under Evid. R. 803(17) (compilation) and 807 (catch-all).  The court found the report reliable (evidence of reliability by public and industry) and its use a necessity (impractical to call or identify everyone who worked on the report).

Of some importance to the court was the fact that Clock Spring did not  challenge the truth or accuracy of the report.

Obviousness. The court also found the claims obvious–the allegedly inventive step
claimed was using a "filler material" (epoxy) on the pipe and, before the filler hardened or cured, wrapping the pipe with high strength material.  The court found several prior art references describing application of a hot or tacky substance and then applying the wrap before the substance cooled or lost its adhesiveness.  The court found it would have been obvious to replace the hot or tacky substances with epoxy per KSR.

False Advertising.  Clock Spring claimed that Wrapmaster made advertising statements about its own PermaWrap product that were false or misleading.  In general, the statements claimed that the PermaWrap sleeve was stronger than competitors (i.e., Clock Spring).  While Clock Spring presented some evidence to show this was false, it failed to show the statements were material.  It presented only a declaration of its president as to what purchasers believe, which the court dismissed as self-serving and not evidence that actual customers were actually misled.   

Documents:

2008-1332_sj_invalidity.pdf
2008-1332_false_adv_sj.pdf

Kyle has over 15 years experience as a trial and appellate lawyer.  With a strong background in mathematics and science, Kyle’s practice has focused on complex and technology-oriented litigation, particularly cases involving patents, antitrust implications and other forms of intellectual property.  Kyle’s undergraduate degree, however, is in economics, and prior to law school, Kyle was an economic researcher for the Federal Reserve Bank of Cleveland where he designed econometric models and research projects, and his analysis was used by Federal Reserve policymakers and was frequently published.  He brings this in depth understanding of economic models to litigation to fashion damage theories and to present them in a way that is easily understood and compelling to a jury.  Prior to joining Renner Otto, Kyle was a partner at Baker & Hostetler and corporate intellectual property litigation counsel for AB Electrolux, one of the world’s leading manufacturers of home appliances. 

Kyle is a member of the San Francisco Intellectual Property Lawyers Association, the Cleveland Intellectual Property Lawyers Association, the Federal Circuit Bar Association, and the Intellectual Property sections of the California and American Bar Associations.  Kyle is also recognized as an Ohio “Super Lawyer” in IP litigation.

Kyle has spoken before numerous groups and organizations on patent litigation, ITC proceedings, technology, antitrust, and economic modeling.

Kyle has worked with clients throughout the world, including Japan, South Korea, China, Canada, Germany, United Kingdom, France, Switzerland, Sweden, Brazil and Mexico.  He also has counseled clients on antitrust issues around the world.

Some of Kyle’s recent cases include:

• Alcohol Monitoring Systems v. Actsoft, et al., U.S. District Court, Colorado
• Surgical Navigation Technologies, et al. v. BrainLAB, Inc., et al., U.S. District Court, Colorado
• Avery Dennison Corp. v. Toray Int’l, U.S. District Court, N.D. California
• River Oaks Homes v. Monarch Homes, U.S. District Court, N.D. Ohio
• IMIG Corp. v. Electrolux, U.S. District Court, E.D. New York
• Atotech v. MacDermid, Inc., U.S. District Court, New Jersey
• Avery Dennison Corp. v. Alien Tech., U.S. District Court, N.D. Ohio
• Dillon et al. v. Royal Group Technologies Ltd., et al., U.S. District Court, N.D. Ohio
• Schreiber Foods, Inc. v. Galaxy Nutritional Foods, U.S. District Court, E.D. Wisconsin

In addition to IP and patent cases, Kyle successfully tried several other high profile actions, including a case to the Ohio Supreme Court on behalf of a major newspaper against a state court judge challenging the unconstitutional closing of the courtroom and sealing of documents during the Sam Sheppard wrongful imprisonment case.  In a related case, Kyle successfully defended Jim Neff, a reporter writing a book on the Sheppard case, against prosecutor’s attempts to seize his research notes on the case (The Wrong Man, Jim Neff, Random House 2002).   

Kyle also has significant appellate experience, including: 

• Paradise Creations v. U V Sales, 315 F.3d 1304 (Fed. Cir. 2003) 
• In re Seagate Tech., 497 F.3d 1360 (Fed. Cir. 2007)
• TAP Pharmaceutical Products, Inc. et al v. Owl Pharmaceuticals, LLC, unreported 2003-1364 (Fed. Cir. 2005)
• Medtronic v. BrainLAB AG, unreported 2006-1289 (Fed. Cir. 2007)
• Binsack v. Hipp, et al., No. H-97-029, 1998 WL 334223 (Ohio Ct. App. June 5, 1998)
• IPD v. Bizmart, Inc. d/b/a OfficeMax, 95 Ohio St. 3d 452 (2002)

Education
J.D. cum laude, George Washington University, 1993
B.A. Economics, honors, Northwestern University, 1988

Bar Admissions
California, 1993
Ohio, 1995
New York, 2001

Numerous Federal Courts including
U.S. Court of Appeals, Federal Circuit
U.S. Court of Appeals, Ninth Circuit
U.S. Court of Appeals, Sixth Circuit
U.S. Court of Appeals, Eleventh Circuit
U.S. District Court, Northern District of California
U.S. District Court, Central District of California
U.S. District Court, Southern District of California
U.S. District Court, District of Colorado
U.S. District Court, Northern District of Ohio
U.S. District Court, Southern District of New York
U.S. District Court, Eastern District of New York

Random Other Stuff About Kyle

• Boards and surfs goofy-footed
• Scuba certifications from NAUI, PADI and IANTDA
• iPod has a ton of Clash, surf (punk, surfabilly, spy) and Social D (thanks Todd)
• Current reading list:
  • The Ascent of Money by Niall Ferguson
  • Prophet of Innovation: Joseph Schumpeter and Creative Destruction by Thomas McGraw (finished)
  • The Great Partition: The Making of India and Pakistan by Yasmin Khan (finished)
  • Ghandi & Churchill: The Epic Rivalry that Destroyed an Empire and Forged Our Age by Arthur Herman (finished)

Kyle took much grief for his “third-person” bio, but it was started years ago when he worked somewhere with a marketing department.  Kyle just hasn’t changed it since.