Blawgletter®

Quote of the Day: Miguel de Cervantes

Blawgletter grew up in Nacogdoches and went to college and law school in New England.  Bear with us.

One time, to get home for Christmas, we caught a bus in New Haven, boarded another one in a scary part of New York, rode across the nation's midsection before cutting south, and ended up in Henderson, Texas.  Our dad picked us up there and carried us home. 

The snow that made big drifts along the interstates that winter reminds us of the enormous blanket that coats large parts of the country -- even Dallas! -- now.

The journey recalls how we passed the time on the Greyhound.  We read a long paperback.  The writer, a Spaniard, Miguel de Cervantes, told the tale of a knight errant, Don Quixote, and his faithful companion, Sancho Panza, in the early 1600s.

One of the most memorable (and funniest!) parts of the book sprang to mind:

OF THE GOOD FORTUNE WHICH THE VALIANT DON QUIXOTE HAD IN THE
TERRIBLE AND UNDREAMT-OF ADVENTURE OF THE WINDMILLS, WITH OTHER
OCCURRENCES WORTHY TO BE FITLY RECORDED

At this point they came in sight of thirty forty windmills that
there are on plain, and as soon as Don Quixote saw them he said to his
squire, "Fortune is arranging matters for us better than we could have
shaped our desires ourselves, for look there, friend Sancho Panza,
where thirty or more monstrous giants present themselves, all of
whom I mean to engage in battle and slay, and with whose spoils we
shall begin to make our fortunes; for this is righteous warfare, and
it is God's good service to sweep so evil a breed from off the face of
the earth."

"What giants?" said Sancho Panza.

"Those thou seest there," answered his master, "with the long
arms, and some have them nearly two leagues long."

"Look, your worship," said Sancho; "what we see there are not giants
but windmills, and what seem to be their arms are the sails that
turned by the wind make the millstone go."

*  *  *  *

Like Cervantes, my dad, Don Barnett, made me smile.  This holiday season, I hope you, too, fondly remember the people who won your love and yet have passed away.

They may be giants.

Microsoft Owes $240MM and Must Quit Word's XML Editor, Federal Circuit Holds

The Federal Circuit yesterday upheld almost all of a $240 judgment against Microsoft Corporation for willful patent infringement. 

U.S. District Judge Leonard A. Davis presided over a jury trial on i4i's claims.  He accepted findings of infringement and willfulness and the jury's verdict of $200 million in damages.  He also enhanced the award by $40 million, in part due to Microsoft's misbehavior during the lawsuit. 

The Federal Circuit agreed with all that and adjusted only the start date of the permanent injunction against future use of the XML editor feature in Microsoft's popular Word application program.  The only evidence of when Microsoft could achieve the switch said it could happen at the earliest after five months.  The panel gave Microsoft exactly that much time.  i4i Ltd. Partnership v. Microsoft Corp., No. 09-1504 (Fed. Cir. Dec. 22, 2009).

The decision drew Blawgletter's curiosity in part because it likewise attracted an amicus curiae brief from the Washington Legal Foundation, which styles itself "a public interest law and policy center that devotes substantial resources to defending and promoting free enterprise, individual rights, and a limited and accountable government."  Anxious to see what Issue of Great Moment and Wide Public Interest grabbed WLF's attention, we scanned its brief.  But imagine our disappointment at what we saw:  "WLF believes that the excessive damages award and ill-conceived injunction in this case reflect disturbing trends in patent infringement cases more generally."

The Disturbing Trends problem!  Woo-hoo!

Ohio Gamblers Must Pass Pillars of Hercules for Relief, Sixth Circuit Rules

The Strait of Gibraltar pinches the Atlantic Ocean and Mediterranean Sea into a 7.7-mile slit of water that joins the two great saltwater masses.  Ancient writers called mounts on each side of the channel -- including the Rock of Gibraltar -- the Pillars of Hercules.  The Pillars marked the far point of Hercules's wide travels and thus the limits of terra cognita and mare cognitum.

Today the Sixth Circuit upheld an order remitting two online gamblers to the tender mercies of the court system in the self-governing British overseas possession of Gibraltar.  The Internet bettors accused PartyGaming, a Gibraltar company, of violating Ohio law by falsely implying that no collusion took place in PartyGaming's digital poker parlor.  The district court raised forum non conveniens on its own and dismissed the case in favor of refiling, if at all, in Gibraltar.

The Sixth Circuit put weight on the fact that PartyGaming's "Terms and Conditions of Use" included a choice of law clause -- selecting Gibraltar law -- and a forum selection clause -- which the court paraphrases as providing that "any disputes shall be subject to the exclusive jurisdiction of the courts of Gibraltar."  Wong v. PartyGaming LTD., No. 08-4295, slip op. at 2 (6th Cir. Dec. 21, 2009).  The panel also rejected the plaintiffs' chief gripe about Gibraltar -- that its courts don't seem to allow for class actions.  PartyGaming said that they do, too, permit class cases, but the court said it doesn't matter.

MDL Panel Heads to Miami for January Session

See the order for the January 27, 2010 gathering of the Judicial Panel on Multidistrict Litigation here.

Have you noticed, by the way, that the Panel has started DENYING a fair number of MDL motions?  What gives?

FTC Sues Intel for Unfair Chip Competition

The Federal Trade Commission sued Intel Inc. yesterday for using "its dominant market position for a decade to stifle competition and strengthen its monopoly."  Something about the brainy chips -- the central processing units -- that drive computers.

Press release here.  Complaint here.

The administrative suit shows a trial date of September 15, 2010.  It invokes section 5 of the Federal Trade Commission Act.  Section 5 bars unfair methods of competition but has lain dormant for many years.  The FTC Chairman explained why the Commission took the unusual approach of basing its complaint solely on section 5 -- with no count under the Sherman Act, which sets a tougher standard for liability:

[C]oncern over class actions, treble damages awards, and costly jury trials have caused many courts in recent decades to limit the reach of antitrust.  The result has been that some conduct harmful to consumers may be given a "free pass" under antitrust jurisprudence, not because the conduct is benign but out of a fear that the harm might be outweighed by the collateral consequences created by private enforcement.

Intel called the case "misguided."