NOVEMBER NEWSLETTER

On October 20, 2003, the United States Court of Appeals for the Sixth Circuit affirmed a grant of summary judgment in favor of FI&C client Western Trimming Corp. ("Westrim").  The plaintiff filed the case in June, 1998, and had argued in both the trial court and the Court of Appeals that certain photograph albums manufactured by Westrim infringed upon the plaintiff's trade dress.  Charlie Faruki and Jeff Sharkey worked with Westrim's counsel to persuade both the district court and the appellate court that the plaintiff's purported trade dress was functional (and plaintiff's claims were thus barred) under the United States Supreme Court's decision in TrafFix Devices, Inc. v. Marketing Displays, Inc., 552 U.S. 23 (2001).  The Sixth Circuit decision will be published and is currently available on the Sixth Circuit's website or from FI&C upon request.

FI&C successfully obtained summary judgment in a large patent case on behalf of its client, a worldwide consumer products company.  The client had been accused by a competitor of willfully infringing a patent on a consumer product in the feminine care marketplace.  On November 4, 2003, U.S. District Judge Thomas Rose issued a decision granting FI&C's motion for summary judgment of non-infringement.  The summary judgment motion followed on the heels of a favorable claim construction opinion issued after a Markman hearing before Judge Rose.  The motion was a team effort; FI&C attorneys Charlie Faruki, Tom Kraemer, Jeff Cox, Don Burton, John Fischer and Julie Zink all contributed to the effort.  Among other points, the motion addressed issues arising from the intersection of summary judgment practice and the doctrine of equivalents.  The Court ruled that the client's accused product did not infringe the competitor's patent either literally or under the doctrine of equivalents.

FI&C congratulates all ten attorneys from the firm who passed the July 2003 Ohio Bar Examination, and who were sworn in as new members of the Ohio Bar on November 10, 2003.  The new Ohio lawyers include:  Shawn Kelly (also admitted in New York and Pennsylvania), Andrew LeMar, Mark Mahoney, Andy Reitz, Adam Sherman (also admitted in New York and California), Angela Sinkovits, Nick Smith, Ian Taronji (also admitted in Michigan), Eric Voigt, and Katie Wahl.

On November 5, 2003, the Supreme Court of Ohio declined jurisdiction and dismissed the appeal of a plaintiff attempting to bring a cause of action for intentional spoliation of evidence against an adverse expert witness based on the opinion testimony provided by the expert at a previous medical malpractice trial.  Jeff Cox and Melinda Burton successfully defended the expert witness in this spoliation action arguing (1) that the expert witness was immune from suit based on the witness immunity doctrine and (2) claims for intentional spoliation of evidence apply only to the destruction or alteration of physical evidence, not testimonial evidence.  The trial court dismissed the complaint for failure to state a claim and the Second District Court of Appeals agreed.