Plaintiffs With No Shame

Submitted by patentadmin on Mon, 12/20/2010 - 15:16

Sometimes a defendant need not actually present its defense in order to prevail. Sometimes the plaintiff seemingly goes out of its way to destroy its own case. Advanced Magnetic Closures, Inc. et al. v. Rome Fastener Corporation et al.

Advanced Magnetic sued Rome, alleging infringement of a patent directed to magnetic snap fasteners commonly used in women’s handbags. The patent-in-suit identified Irving Bauer, the president of Advanced Magnetic, as the sole inventor.

Among the affirmative defenses pled by Rome Fastener was “unclean hands.” Rome was alleging that a former Advanced Magnetic employee, Robert Riceman, was the true inventor of the patented invention, not Mr. Bauer.

Proceeding aggressively – but ill-advisedly – Advanced Magnetic moved for summary judgment striking this defense. The trial court deferred its decision on this motion because Mr. Riceman could not testify against Mr. Bauer. It seems that the issue of inventorship had arisen previously and, in a prior lawsuit, Mr. Riceman had settled his claims to inventorship and agreed not to voluntarily assist anyone in litigating against Mr. Bauer. In order to overcome this little impediment, the Court directed Rome Fastener to subpoena Mr. Riceman and depose him.

At his deposition, Mr. Riceman testified that he, not Mr. Bauer, had invented the subject magnetic snap fastener. In an – again, ill-advised – effort to overcome Mr. Riceman’s testimony, Advanced Magnetic introduced, at a hearing on the summary judgment motion, two documents to corroborate Mr. Bauer’s claim of inventorship: an invoice from a machine parts manufacturer and an invoice from a law firm for prosecution of the patent-in-suit.

Rome Fastener – wisely – challenged the authenticity of the proffered documents, whereupon Mr. Bauer admitted that the manufacturer’s invoice “was not the original, but one that he personally drafted and reconstructed” and that the law firm invoice was similarly “reconstructed.”

Incredibly, the Court allowed the case to go to trial. Advanced Magnetic, apparently taking the wrong message from the Court’s forbearance, submitted MORE “reconstructed” evidence in its continuing efforts to prove Mr. Bauer was the inventor. There were some “very poor, essentially illegible” copies of sketches that Mr. Bauer allegedly made when he conceived the invention. To overcome the problem of illegibility, Mr. Bauer submitted what was subsequently described by the trial judge as, “a copy of the copy of the original sketch on which additional notations were made, most of them apparently restating in clearer block letters, the original notations.” Mr. Bauer testified that he “created this copy after the original was partially destroyed in a flood.” Unfortunately, these “notations” conflicted with Mr. Bauer’s trial testimony.

Lest we conclude that inventorship was the only issue meriting the manufacture of evidence by Advanced Magnetic, we turn to the question of infringement. In an effort to provide infringement, Advanced Magnetic submitted an “expert report” from Dr. Dev Ratnum, who purportedly performed a “magnetic finite element analysis” that produced images establishing, in Dr. Ratnum’s opinion, infringement. In his report, he wrote “… the pictures do not lie …” (but apparently Dr. Ratnum does).

We used the word “purportedly” in the previous sentence because it was subsequently established that Dr. Ratnum had not performed any finite element analysis. In fact, a finite element analysis had been performed by a Mr. Brian Bell. Rome Fastener requested Mr. Bell’s reports on this analysis, which Advanced Magnetic refused to produce. The Court then ordered production. Not surprisingly, given Advanced Magnetic’s reluctance to produce the report, Mr. Bell had written, in describing the test results, “This does not help your case.”

Advanced Magnetic did not rely solely on “reconstructed” documents and prevaricating experts. They also had Mr. Bauer’s sworn testimony. As later described by the trial court, Mr. Bauer was “either unable or unwilling to articulate [his] claimed invention … offered difficult-to-follow explanations of … experiments he performed when he claimed to have conceived of the invention … could not offer any scientific or technical explanation of his own patent … and … offered an evasive, argumentative, and at times contradictory testimony on his status as inventor.”

The bottom line here was that the Court, finally losing patience with Advanced Magnetic and its band of merry pranksters, granted judgment as a matter of law (JMOL) to Rome Fastener at the close of Advanced Magnetic’s case. Rome never even presented its defense.

“But wait; there’s more.”¹ The judge went on to assess attorney’s fees and costs against Advanced Magnetic and its law firm in the amount of $2,510,136.90. Apparently, not sufficiently embarrassed by the decision, they appealed this award. Needless to say, they LOST their appeal.

THE LESSON TO BE LEARNED: Honesty is the best policy.

¹ Quoted from Paul Harvey.

Submitted by Anonymous (not verified) on Tue, 01/04/2011 - 14:48


It was ill-advised even for the plaintiff to have filed this suit. However, the plaintiff isn't the only one to blame here; the facts give the impression that Advanced Magnetic's counsel was at least somewhat aware of its clients lies and obfuscations. While many attorneys may doubt the veracity of their clients' claims, you have to wonder about some of the lapses in judgment by this plaintiff's attorneys -- from presentation of the "reconstructed" evidence to Bauer's unprepared state at trial.

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