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Intellectual Property Today
RFC Express - New IP Lawsuits

Litigators Corner:
Send It to the Marx Brothers (OR: My Wishes for 2010)

By Joseph N. Hosteny of Niro, Scavone, Haller & Niro

Regular IP Today columnist Joseph N. Hosteny is an intellectual property litigation attorney with the Chicago law firm of Niro, Scavone, Haller & Niro. A Registered Professional Engineer and former Assistant US Attorney, his articles have also appeared in Corporate Counsel Magazine, The Docket (American Corporate Counsel Association), American Medical News, Inventors’ Digest, Litigation Magazine and Assembly Engineering Magazine. Mr. Hosteny can be reached at (312) 236-0733, or by e-mail at, or by visiting his web site at

By the third Indiana Jones flick, the dialog was pretty tongue-in-cheek. I always especially enjoyed the scene where Indy was attempting to rescue his father, Henry, from the Nazi castle with the secret rooms. Both Indy and Henry are being held at gunpoint by Nazi guards, and the Nazi leader, Colonel Vogel, demands the diary that shows the map for the location of the Holy Grail. Indy waffles, and Henry asks Colonel Vogel how he could possibly believe Indy would be stupid enough to bring the diary into the Nazi lair. Then, suddenly realizing that Indy is, indeed, that stupid, the frustrated, enraged Henry looks at Indy and shouts: "I should have mailed it to the Marx brothers!!"

That leads to my first hope for the New Year: Leave the patent law alone, and may the Lord save us from reformers!

The supposed goal of patent reform, and of many legal decisions for the past fifteen years, ever since Markman v. Westview Instruments, 52 F.3d 967 (Fed. Cir. 1995), was to reduce the complexity of patent litigation, and make the results more certain. Instead, we now have more complexity; because of the Federal Circuit's distrust of district judges and juries, we have what some dissenting judges on the Federal Circuit have referred to as a "black hole." Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc) (Mayer and Newman, JJ., dissenting: "What we have wrought, ins...

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