Patent Law

Pass the Glue

By Gary Odom and Jordan Kuhn

In F&G Research v. Dynapoint (Taiwan), the CAFC ruled Allen D. Brufsky a scumbag: having "significantly misrepresented the facts," relying on "vague allegations without basis in the record," and showing "a willingness to mislead the court." It's a shame, because Brufsky has one gorgeous web site. You'd think a guy with taste would have class, but there you go.

F&G Research v. Dynapoint (Taiwan) (CAFC 07-1350)

F&G tried using 5,313,229 as a cudgel against Dynapoint, suing in the Sunshine State, Brufsky's stomping grounds. Small problem there -

Dynapoint Taiwan specifically contended, and F&G does not contest, that Dynapoint Taiwan has no office in the State of Florida, has never operated, conducted, engaged in, or carried on any business venture in the State of Florida or anywhere else in the United States, has not sold or solicited customers for Dynapoint China in the State of Florida or anywhere in the United States, has not attended any trade shows in the United States, has no corporate officers who are residents of the United States, maintains no financial accounts in the United States, does not manufacture computer mice, and has only a passive website, which does not enable visitors to order products.

So Brufsky steps up to the plate with his own hard word. Brufsky is always on point, except of course when he's not; please, no wagering on the Brufsky hit rate.

In opposing Dynapoint Taiwan?s motion to dismiss for lack of personal jurisdiction, F&G relied upon a declaration from its counsel, Brufsky... That declaration does not mention Dynapoint Taiwan, and instead links the distribution of computer mice allegedly infringing F&G?s patent to Dynapoint China.

Taiwan, China, what's the difference? For Christ's sake, they're Dynapoint! What more do you need? Alas, after a day of head-scratching, the district court pitched Brufsky's roping in Dynapoint China.

Naturally, to keep the clock running, F&G appealed. Small problem with that -

In this appeal, F&G argues that the district court improperly dismissed its case for lack of personal jurisdiction over Dynapoint Taiwan. F&G?s appeal has no merit. F&G points to no errors in the district court?s decision, contending only that support for its position can be found in the Brufsky declaration. As previously noted, the Brufsky declaration does not mention Dynapoint Taiwan but, rather, links the distribution of computer mice allegedly infringing F&G?s patent to Dynapoint China, a company distinct from Dynapoint Taiwan, notwithstanding the shared use in their respective business names of the word ?Dynapoint.? F&G cites nothing in the record to link Dynapoint Taiwan with the State of Florida or to any sales activities by Dynapoint Taiwan on Dynapoint China?s behalf in the United States. Instead, it simply treats the Taiwanese and Chinese companies as if they are one and the same. In response to Dynapoint Taiwan?s argument that Dynapoint China and Dynapoint Taiwan are not the same, Brufsky, on page 1 of the reply brief, misrepresents that Dynapoint China ?is a co-defendant in this case,? citing the district court?s order of April 11, 2007, with no mention of the fact that the April 11, 2007 order was set aside on April 12, 2007.

The CAFC issued a show cause order. Sensing some tension, Brufsky eased up, offering to dismiss.

What defines frivolity? The CAFC has an answer, though tautology creeps in. Personally, I always considered tautological definition ipso facto frivolous.

?If a court of appeals determines that an appeal is frivolous, it may, after . . . notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.? Fed. R. App. P. 38. We have held that an appeal may be ?frivolous as filed? when ?an appellant grounds his appeal on arguments or issues that are beyond the reasonable contemplation of fair-minded people, and no basis for reversal in law or fact can be or is even arguably shown.? Abbs, 237 F.3d at 1345 (internal quotation marks omitted). An appeal may be ?frivolous as argued when an appellant has not dealt fairly with the court, [or] has significantly misrepresented the law or facts.? Id. ?[A]n appeal which is frivolous as filed must also be frivolous as argued, since any arguments made in support of it are, by definition, frivolous.? Constant v. United States, 929 F.2d 654, 658 (Fed. Cir. 1991). Although ?[w]e are reluctant to impose sanctions,? Abbs, 237 F.3d at 1346, ?examples of actions deemed sanctionable include . . . failing to explain how the trial court erred or to present cogent or clear arguments for reversal, . . . making irrelevant and illogical arguments, [and] misrepresenting facts or law to the court,? id. at 1345 (internal citations omitted).

Discovering that Dynapoint China and Dynapoint Taiwan are not the same irked the CAFC. But that wasn't really Brufsky's fault - he tried to glue them together as best he could.

F&G?s persistent and exclusive reliance on the Brufsky declaration, which identifies Dynapoint China?rather than Dynapoint Taiwan?as the producer of the allegedly infringing products, can best be described as the type of irrelevant and illogical argument warned against in Abbs. F&G makes no effort to identify any legal or factual error in the district court?s reasoning or findings. Instead, F&G relies on vague allegations without basis in the record,... and on generalized statements that treat both the Taiwanese and Chinese companies as if they were one and the same... F&G and Brufsky attempt to portray Dynapoint Taiwan and Dynapoint China as ?one entity,? id. at 5 n.1, despite their separate corporate existence and the district court?s decision to set aside its order joining Dynapoint China as a co-defendant. This approach to advocacy reflects not only a ?fail[ure] to explain how the trial court erred or to present cogent or clear arguments for reversal,? but also a willingness to mislead the court. Abbs, 237 F.3d at 1345. Brufsky?s misrepresentation regarding Dynapoint China?s status in this case along with F&G?s reliance on an order withdrawn by the district court, see Reply Br. at 1, more than justify a conclusion that this appeal is frivolous as filed and as argued.

The CAFC awarded attorneys' fees and costs to Dynapoint Taiwan, to be paid by F&G and Brufsky.

Full post as published by The Patent Prospector on February 02, 2008 (boomark / email).