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Originally published by Joanna Herzik.
To highlight some of the posts that stand out from the crowd, the editors of Texas Bar Today have created a list from the week’s blog posts of the top ten based on subject matter, writing style, headline, and imagery. We hope you enjoy this installment.
8. Return to Sender: Aetna to Pay $17M to Settle Claims Related to Vendor Mailer Data Breach – Erin Begun of King Fisher in Dallas
6. Proving You Are Ready to Go from the Exam Room to the Courtroom – Kirsha Trychta of the Law School Academic Support Blog
5. 5 Tips for Minimizing Trade Secrets Theft by Clients, Contractors and Vendors – Leiza Dolghih @TexasNonCompete of Lewis Brisbois Bisgaard & Smith LLP in Dallas
4. Death by Swatting. Should There Be a Federal Law Against Swatting? – Tim O’Hare @TimothyOHare of The Law Offices of Tim O’Hare in Carrollton
3. Trial Lawyer Lesson: The Risk of “So You’re Saying” – Mark Bennett @MarkWBennett of Bennett & Bennett in Houston
2. A New Google Algorithm Update Is Shaking Up The Legal Industry – Emma Hanes of Stacey E. Burke P.C. @StaceyEBurke in Houston
Originally published by Tony Coveny.
Busting myths about food safety in the home
Food safety is often thought of as a concern in restaurants or supermarkets. However, there are many areas in the home that are sources of common and dangerous myths. Food poisoning can occur when these myths are followed as truth.
Food safety myths that must be dispelled in the home include:
The five second rule: There is actually no amount of time that food can safely remain on a floor or other contaminated surface. Bacteria attaches itself to food immediately once it makes contact.
Leftovers can be cooled and re-heated numerous times: Leftovers may taste better the second time around, but they should only be re-heated once. Cooling, handling, and re-heating food can create new opportunities for bacteria to grow. If there are too many leftovers for one additional meal, they should be packaged separately and frozen for future meals so they can be thawed individually.
Use-by dates are just suggestions: Food that needs refrigeration carries a date that is related to food safety. Consuming these perishable items after the use-by date can actually create a food poisoning risk. The best-before date, however, is more about quality, indicating that a food item may not taste as good after the printed date.
Raw chicken should be washed before it is cooked: In reality, washing the raw chicken can create a splash effect on the cooking surface, contaminating countertops, stovetops, and cooking utensils. A bacteria called Campylobacter, the most common cause of food poisoning, is often found in raw chicken. Another is Salmonella, which has been at the heart of a number of chicken related outbreaks in recent years. As much as 20 t 30% of raw chicken tested positive for Salmonella as recently as five years ago, thought this is trending downwards. When chicken is cooked properly to an internal temperature of 180 degrees, any bacteria should be destroyed.
Food safety is a concern at home as well as at restaurants and grocery stores. Busting these myths at home can help reduce the potential for food poisoning incidents that can be painful and potentially fatal.
For more information about food safety, contact the food poisoning lawyers at 1-888-335-4901.
The post Busting Myths About Food Safety: Four Common Myths appeared first on Food Poisoning News.
Originally published by Denied Insurance Claim Blog.
Hail damage to a restaurant can cost thousands in lost revenue with each passing day. But when it comes to fixing broken windows and leaking roofs in franchise restaurants, there could be multiple policies available for the claim. Attorney Bill Voss takes a look at different insurance coverage approaches and why each can make a big difference in the amount you recover.
Not only do franchise restaurant operators need basic coverage for property damage and liability, they often require additional endorsements from the franchiser. Multiple policies and coverage limits make these kinds of claims complicated, but if done correctly they can allow for maximum payment for commercial hail damage.
There are many different kinds of policies that could cover hail damage losses in these situations, including:Company insurance. Some franchisers directly select the insurance companies that provide policies to a franchise operator. Larger corporations may opt to protect their reputations by making certain coverage options mandatory, such as requiring replacement cost rather than actual cash value for franchise damage claims. Franchise endorsements. Restaurants continually change the design of their logos, equipment and interiors, and franchises must make these updates as part of their repairs. Franchise endorsements provide coverage for an owner to update their location to new corporate standards, such as installing a new sign if the old one is damaged in a hailstorm. Optional coverage. If a franchise operator selects his own insurance coverage, he must do so carefully. While bare-bones policies may offer cheaper payments, optional coverage (such as extra expense, lost business income, and umbrella coverage) can save the franchisee from total loss or even bankruptcy.
Whether you own one franchise restaurant or multiple locations, the Voss Law Firm can investigate the details of your claim and fight on your behalf. Simply fill out the contact form on this page today or order a free copy of our book, Commercial Property Owners Must Read This BEFORE Filing an Insurance Claim.
RELATED LINKS:Early Repairs Can Prevent Devastating Hail Damage Different Roof Coverings Affect Damage Done by Hailstones How to Inspect Your Roof for Hail Damage
Originally published by tiffany.dowell.
I tell you what, it’s been a whirlwind of a week both for my travel schedule and for ag law news! On Monday I spoke in Pampa at a program hosted by County Extension Agents Mike Jeffcoat, Michael Wilkes, and Jody Bradford. Then on Tuesday, I headed to Lubbock for the Seeking Solutions Regional Extension meeting. Wednesday found me back on the road to Lubbock to speak at the Texas Alliance for Water Conservation Water College. Today, I’ll be doing an online presentation for a graduate student group at Texas A&M. Then I’ll need a nap! Welcome to all of you joining from these events.
Here are some of the ag law stories in the news this week.
* US Supreme Court rules that WOTUS challenge should be heard in district court. In a unanimous decision, the Justices held that challenges to the 2015 “Waters of the United States” rule should be filed in the federal district courts, rather than at the appellate level. When challenges were filed across the country, some were filed at the district court level and some at the appellate level. The federal government (under both President Obama and President Trump) took the position that the cases should be filed in appellate courts, arguing that this case was one of seven types of lawsuits identified in the Clean Water Act for which appellate courts had jurisdiction. The challengers who filed at the district court argued that this particular dispute did not fall into one of those categories and should, like most other lawsuits, be filed at the trial court level. The Court agreed and held that jurisdiction was vested in the district courts. [Read full opinion here ].
Where things get more complicated now is when we consider the issue of whether the current stay that has prevented the 2015 rule from going into effect will remain since it was issued by the 6th Circuit Court of Appeals. This stay has been responsible for preventing the 2015 Rule from going into effect across the country. Currently, the EPA has proposed to additional regulations that would prevent the 2015 rule from going into effect for two years while the EPA works on revising the replacing that rule. Neither of those have been finalized at this point. Will the 6th Circuit lift the stay? Will the EPA get a final regulation issued suspending the 2015 rule from going into effect? Will various federal district courts issue injunctions against the 2015 rule? Will the rule go in into effect across the country? Will it go into effect in parts of the country? We’ll have to wait and see… [Read article here.]
* Emissions reporting deadline for agricultural operations further delayed. The January 22 deadline for producers to begin reporting air emissions under CERCLA appears to be delayed again. The reporting requirement was slated to go into effect on Monday, but the EPA has requested an additional 90-day stay and the DC Circuit Court has yet to issue a mandate ordering producers to comply. Once the mandate is issued, producers with emissions of over 100 pounds in a 24 hour period of ammonia or hydrogen sulfide will be required to file reports with the EPA, with the first report being due within 24 hours of the mandate. Confusion still remains about the proper way to measure emissions and about how exactly reporting will logistically be handled. [Read article here.]
*Arkansas Legislative Council signs off on April 15 dicamba ban, lawsuits pending. As we’ve been following on a weekly basis, the dicamba drama continues in Arkansas. Last week, the Arkansas Legislative Council approved a recommendation from the State Plant Board to ban the use of dicamba over-the-top on crops after April 15. Two lawsuits remain pending against the State Plant Board over this ban. One was filed by Monsanto and the second was filed by a group of farmers challenging the cut-off date. [Read article here.]
*Advice on negotiating milk supply contracts. Indiana-based attorney Todd Janzen recently did a webinar for dairy farmers on negotiating milk supply contracts. In today’s world, these contracts are increasingly important and increasingly complicated. To listen to the recording of Todd’s webinar, click here.
* Talking Texas v. New Mexico litigation. Last week, I visited with Texas Farm Bureau’s Jessica Domel about what is going on in the Texas v. New Mexico case before the US Supreme Court. We covered the underlying facts in the litigation as well as the procedural issue that is currently being considered by the Justices of the Supreme Court. [Read article here.]
*FREE Webinar on how tax reform law will impact agriculture. As everyone knows, Congress recently passed the biggest tax law overhaul in decades. The American Agricultural Law Association will be hosting a free webinar talking about how this new law will impact agricultural producers. The webinar will be on Tuesday, January 31 at 12noon CST. The webinar is open to everyone–lawyer or not–and you can find more information here.
Programs Next Week
I’ll be slowing down a bit next week with only one program on the agenda, an online presentation on ag and environmental law to an Ag Leadership course at Mississippi State University. I’ll be back on the road the following week! As always, you can see my complete presentation schedule here.
Originally published by lawschool academicsupport.
Howdy Bar Prep Students: I am writing this note especially to those of you currently in the midst of preparing for the February 2018 bar exam. If you’re like me, about this time in bar prep, I felt like I…
Originally published by Tim O'Hare.
By Texas Christian Injury Lawyer, Tim O’Hare
On Dec. 28, 2017, 28-year-old Andrew Finch, a resident of Wichita, Kansas, was shot and killed by Wichita police. He was the unarmed, unintended victim of a “swatting” prank.
Swatting, by definition, is making a false police report, usually of a violent crime, with the intention of sending law enforcement to a specific location. According to the FBI, about 400 swatting cases occur annually. And certainly not all end in the death of an innocent victim, but that was not the case in Kansas. There are currently no federal laws on the books about swatting.
It all started in Los Angeles, when 25-year-old gamer, Tyler Barriss, allegedly placed a call to Wichita police reporting a shooting and hostage situation after a dispute over a small wager online in a “Call of Duty” video game tournament. Barriss called 911 claiming to have shot his father and to be holding his wife and young son at gunpoint. He then gave police dispatch an address — that address happened to be that of Andrew Finch, who was not involved in the gaming dispute.
When officers responded to the call, Finch stepped out of his home. No doubt confused and frightened at the situation, he allegedly lowered his arm toward his waistband and was shot by an officer who believed Finch was reaching for a weapon. Finch did not survive.
What is just punishment in swatting cases such as this? Can swatters be charged with murder? Should Barriss be charged in Finch’s death?
This is not Barriss’ first offense. He has a history of calling in false alarms to police, including a case in Canada that resulted in Calgary police surrounding a woman’s apartment with guns drawn. He also served jail time in Los Angeles for calling in two fake bomb threats in 2015. Investigators have connected him to about 20 other alleged swatting and hoax threat incidents.
Swatting cases can be challenging because intent isn’t always clear. While first-degree murder may not apply, arguably, second-degree murder might apply as the suspect willfully acts with indifference and disregard for human life.
In this case, the suspect has been criminally charged with involuntary manslaughter, giving false alarm and interference with a law enforcement officer for allegedly placing the hoax call.
Should there be a federal law against swatting? Should Barriss and other swatting suspects be held responsible for deaths that may occur? We want to know what you think. Share your thoughts with us on our Facebook page!
If you believe you have a case for a personal injury lawyer, contact The Law Offices of Tim O’Hare to speak with a Dallas personal injury attorney.
Call The Law Offices of Tim O’Hare for your FREE Case Evaluation
972-960-0000 or Toll-Free 888-960-0020
The post Death by Swatting. Should There Be a Federal Law Against Swatting? appeared first on .
Originally published by Jack Townsend.
DOJ Tax announced here the sentence for Hyung Kwon Kim for an FBAR violation. (Note that the announcement identifies the defendant as Huong rather than Hyong, but Hyong appears to be a misspelling of his first name per the underlying documents.) I previously blogged on Kim’s guilty plea. Another FBAR Plea And Notice of Government Change of Position on Applicable Guidelines (Federal Tax Crimes Blog 10/27/17), here.
The key numbers are exceptional. The amount of the unreported or underreported accounts is over $28 million. The FBAR penalty is over $14 million. The sentence is only 6 months.
Key excerpts are:
According to documents and other information provided in court, Hyong Kwon Kim, a citizen of South Korea and, since 1998, a legal permanent resident of the United States, resided in Massachusetts and later in Connecticut. Kim, a sophisticated business executive who ran family businesses with operations in the United States and internationally, inherited tens of millions of dollars that he stashed in secret accounts at Credit Suisse, its subsidiaries, and another Swiss bank. Kim deliberately violated the U.S. bank secrecy laws by failing to report his foreign financial accounts to the Treasury Department. U.S. citizens, resident aliens, and permanent legal residents with a foreign financial interest in or signatory authority over a foreign financial account worth more than $10,000 are required to file a Report of Foreign Bank and Financial Accounts, commonly known as an FBAR, disclosing the account.
Kim conspired with a host of foreign enablers, including Dr. Edgar H. Paltzer, his Swiss attorney who pleaded guilty in 2013 in the Southern District of New York, and bankers to conceal his assets and income in Swiss accounts held in his own name, the name of a relative, and in the names of sham corporate entities. Kim schemed with Paltzer and his bankers to structure financial transactions in a manner that allowed him to utilize the funds in the United States, while concealing his ownership and control of the offshore funds. For example, Kim had checks issued to third parties in the United States in order to purchase a luxury home in Greenwich, Connecticut, a waterfront vacation retreat in Chatham, Massachusetts, and jewelry adorned with multi-carat diamonds, emeralds, and rubies. In order to conceal his ownership of the vacation home, Kim and Paltzer created a sham entity to hold title to the home. Kim and Paltzer acted as if Kim rented the home from a fictitious owner.
In 2008, as Credit Suisse closed accounts held in the names of sham entities owned by persons residing in the United States, Kim refused to bring his assets to the United States. Instead, he transferred his assets to another Swiss bank. Kim send coded messages from the United States to his Swiss banker in order to maintain control of his account.
Kim ultimately brought his assets to the United States by paying a Swiss jeweler millions of dollars for a ring with a 13.9 carat sapphire and three loose diamonds totaling 13 carats.
The described pattern of conduct is not particularly exceptional.
What is exceptional about the plea and the sentencing is the Government’s announcement in the plea and resulting publicity that it had changed the position on the applicable Sentencing Guideline. Historically, for FBAR violations related to income tax evasion, the DOJ had recommended and most cases had been sentenced under the tax guidelines which calibrated the additions to the Base Offense level based on the tax evaded. In the Kim plea, DOJ Tax announced that the Guidelines would be under SG § 2S1.3 and the incremental offense levels under the theft guideline in SG § 2B1.1. I discussed this in the blog on the plea agreement linked above and in a subsequent blog where the change in position was discussed at a tax conference. More on New DOJ Tax Position on FBAR Sentencing Guidelines (11/9/17), here. Notwithstanding this change of position, DOJ Tax agreed in the plea agreement that it would urge the application of the tax guidelines from fairness to this defendant. I noted, however, that the Probation Office and Judge are not bound by this aspect of the agreement. Indeed, one would think that the judge has to apply the right guidelines even if the parties agreed otherwise. But, let’s see.
The issue came up in the sentencing documents. The sentencing documents are:
(Note that there are sealed documents in the docket entries, here, but I do not know what they relate to.)
In the United States Sentencing Memorandum the following on this subject (bold-face supplied by JAT):
As explained below, while the government agrees with the Probation Office’s calculation of the sentencing range the advisory Sentencing Guidelines, the government nevertheless believes that the appropriate Guidelines range that should be applied in this case is that agreed upon by the parties, as set forth in the plea agreement. Taking into account the factors set forth in 18 U.S.C. § 3553(a) and the government’s filing under seal, the government makes a final sentencing recommendation of nine (9) months of imprisonment, three (3) years of supervised release, an appropriate fine, and a $100 special assessment.
* * * *
A. Guidelines Range
1. The Applicable Guidelines Provisions
The defendant pled guilty to the willful failure to file an FBAR, in violation of 31 U.S.C. Sections 5314 and 5322. The offense of conviction in this case falls under U.S.S.G. § 2S1.3. The Probation Office calculated the Guidelines range under U.S.S.G. § 2S1.3(a)(2) (the “Part-S Guidelines”). See Presentence Investigation Report, ¶ ¶ 76-85. That provision includes a crossreference to the theft and fraud Guidelines, and sets the base offense level as follows:
6 plus the number of offense levels from the table in § 2B1.1 (Theft, Property Destruction, and Fraud) corresponding to the value of the funds, if subsection (a)(1) does not apply.
Probation calculated the base offense level as 28. Probation added 22 levels as it placed the “value of funds” at $28,151,724, the year-end value of the assets in the unreported accounts in 2004 (the highest year-end balance). See PSR, ¶¶ 65(j), 76; U.S.S.G. § 2B1.1(b)(1)(L) (more than $25 million).
The government contends, as does Probation, that two levels should be added as the defendant “committed the offense as part of a pattern of unlawful activity involving more than $100,000 in a 12-month period.” See U.S.S.G. § 2S1.3(b)(2). The Application Note to § 2S1.3 defines a pattern of illegal activity as “at least two separate occasions of unlawful activity involving a total amount of more than $100,000 in a 12-month period, without regard to whether any such occasion occurred during the course of the offense or resulted in a conviction for the conduct that occurred on that occasion.” Kim filed false FBARs on October 14, 2007 (for 2006) and again on March 27, 2008 (for 2008). On each FBAR, Kim failed to report that he owned and controlled any of the financial accounts in Switzerland. Kim also filed a false 2007 Individual Income Tax Return, Form 1040, on March 3, 2008, which omitted any income that Kim earned from the assets in his undeclared accounts in Switzerland. Kim’s attorneys calculated that Kim omitted $104,699 in ordinary income on the 2007 return. The filing of two false FBARs and a false return within a 12-month period qualifies as a “pattern of unlawful activity” sufficient to trigger the two-level enhancement.
While 2S1.3 may be the proper Guideline, the government respectfully requests that the Court sentence the defendant under U.S.S.G. § 2T, the Tax Guidelines. As stated in the Plea Agreement, “at the time that the defendant agreed to plead guilty, the Government consistently took the position with similarly situated defendants that the applicable Guideline was U.S.S.G. § 2T1.1 and § 2T1.4 due to the cross reference in § 2S1.3(c)(1).” n2 Plea Agreement, Dkt. # 10, pp. 3-4.
n2 U.S.S.G. § 2S1.3 states as follows: “If the offense was committed for the purposes of violating the Internal Revenue laws, apply the most appropriate guideline from Chapter Two, Part T (Offenses Involving Taxation) if the resulting offense level is greater than that determined above.”
In 2012, Kim and the government commenced plea negotiations with the defendant’s counsel. At that time, the government had entered into plea agreements with a number of several other legal permanent residents that required those individuals to plead guilty to FBAR charges, and not tax charges. In each of those cases, the plea agreements specifically set forth a Guidelines calculation using the Tax Guidelines and not § 2S1.3. After Kim and the government had reached an agreement in principle, the government continued to employ the Tax Guidelines in virtually every other FBAR case. In order to ensure that this defendant receives equitable treatment, the government believes that the appropriate Guidelines which should be applied in this case are the alternative calculation under § 2S1.3(c)(1).
The base offense level for this offense is 16 pursuant to U.S.S.G. § 2Tl.l(a)(1) and § 2T4.1(F), because the tax loss exceeded $100,000. The base offense level is increased by 2 levels, pursuant to U.S.S.G. § 2T1.1(b)(2), because the offense involved sophisticated means. The defendant should receive a 3-level reduction for acceptance of responsibility resulting in a total offense level of 15. The advisory range is 18 to 24 months of imprisonment and the fine range is $4,000 to $40,000.
So, to summarize, the Probation Office calculated the base offense level at 28 according to the Government’s new position but the Government urged the tax guidelines base offense level of 16. The documents I link above do not provide the Court’s calculations except that the minute entry does state an offense level for the Sentencing Table of 27. I infer that the Court accepted the Probation Office’s proposed base offense level of 28, with the two level upward and 3 level downward discussed in the last quoted paragraph. That offense level would provide an advisory range of 70-87 months, with sentencing limited to 60 months based upon the single offense of conviction.
Obviously, the Government’s change in position on the appropriate sentencing guideline, now approved by at least this court, can produce dramatically harsher results. Of course, in foreign account cases involving only tax evasion, the Courts have already indicated that they will usually exercise Booker variances and often the defendant will, as in Kim’s case, provide substantial assistance for a 5K1 departure. (In this regard, even with the Government’s proposed lower calculation, it wanted a minimum 9 month sentence, but the Government usually asks for more than the Court’s impose.)
Originally published by Herrman & Herrman, P.L.L.C..
Not as easy as it seems. Your attorney gives you a call one day and informs you that the insurance company has made an offer and after paying the medical providers and expenses your take home comes out to a certain dollar figure. Your gut reaction may say to you whoa that’s not good enough we need to take this to court.
At this point, most good attorneys will and should tell you the following: While I agree with you it’s not enough and actually no amount of money is enough to fairly compensate you for all that you have gone through, for all practical purposes I need to advise you it may not be in your best interest to simply just file a lawsuit today.
Lawsuits cost time, effort and money. Attorneys’ fees are likely higher than before a lawsuit and the court costs which include the filing and depositions and mediations and sometimes run into the thousands of dollars. So in theory, while it may be possible and probably a higher amount is gained by filing a lawsuit, will you actually take home more money is the key. For example, an offer before litigation may end up getting you the same take home of a higher offer during litigation.
And in the meantime, you may have had this drag on for another 6 months or longer no closer than where you were at when your attorney first called you about the offer. If you are ever placed in this situation I strongly recommend having a frank conversation with your attorney because it may end up that the only one who ends up making more money on the case is your attorney.
As said earlier, your gut reaction may tell you that “whoa this is not good enough for all that you have gone through and no amount will ever do that for you.” Once you can get past that initial gut reaction and listen to your attorney who is on your side on this you will see it may be in your best interest to not file the lawsuit.
That is not to say that in no case is a lawsuit not warranted because most good attorneys have been filing lawsuits in personal injury cases such as yours for years, but through experience, not every case is a good candidate as ultimately the duty is to look out for the client’s best interest.
So think it through and go over the advantages and disadvantages of a lawsuit with your lawyer. As it is not always black and white.
Originally published by Adam Faderewski.
More than 550 members of the Austin legal community attended the 15th annual Austin Bar Foundation Gala on January 20 at the JW Marriott in Austin. The event raised funds to support and expand legal-related charitable and education programs in Central Texas.
Originally published by Haynes and Boone Benefits Group.
Haynes and Boone, LLP
The Court of Appeals for the Federal Circuit (CAFC) found in Exmark Mfg. Co. Inc. v. Briggs & Stratton Power Prods. GRP., LLC, No. 2016-2197 (Fed. Cir. January 12, 2018) that a district court did not err in denying summary judgment for indefiniteness. Exmark, page 16. Specifically, the CAFC determined that the claim language and specification of U.S. Patent No. 5,987,863 (“the ‘863 patent”) provided reasonable certainty on how to determine whether a lawn mower baffle portion was long enough and straight enough to be considered “elongated and substantially straight” (claim 1 of the ‘863 patent) for the purposes of determining infringement. Exmark, page 16.
An annotated version of FIG. 4 of the ‘863 patent (see below) was provided on appeal illustrating the baffle portion 58 in question. Exmark, page 4. The baffle portion 58 is disposed between a first arcuate baffle portion 56 and a second arcuate baffle portion 60 (col. 4, lines 8-12 of the ‘863 patent) and extends in a “chord-like” fashion with respect to the second arcuate baffle portion 60. Exmark, page 4. The CAFC reasoned that no strict numerical precision was required for definiteness as long as some standard for measuring a term of degree was provided. Exmark, pages 18-19 (citing Nautilus, Inc. v. Biosig Instruments, Inc. 783 F. 3d at 1378) Here, the court found the claims and specification of the ‘863 patent provided that the baffle portion 58 “must be long enough and straight enough to at least connect these two arcuate portions [56 and 60] of the baffle.” Exmark, page 17.
Although any conceivable geometry, e.g., curved, wavy or jagged, could be theoretically employed to “connect” the two baffle portions 56 and 60, the CAFC found that “one skilled in the art would understand that the ‘substantially straight’ portions of the baffle must be sufficiently straight to connect two arcuate portions of the baffle.” Exmark, page 19. The CAFC did not suggest, however, that there was no limit to how askew a baffle portion could be and still be considered “substantially straight.” Rather, the CAFC looked to the specification of the ‘863 patent for guidance. The specification does not define any limits for substantial straightness, but it does refer to the baffle portion 58 as “relatively straight baffle portion 58” (col. 4, lines 11-12 of the ‘863 patent). Thus, the CAFC concluded that the “substantially straight” baffle portion is straight “relative to the curved baffle portions.” Exmark, page 18. The court suggests that as long as a competitor’s baffle portion was straighter than the arcuate portions, that it could be considered “substantially straight,” and the competitor should not be ensured that they had successfully designed around the ‘863 patent simply by designing in some curvature or irregularity into a baffle portion connecting two arcuate baffle portions.
The court also turned to functional language in the claim to provide further guidance in determining whether or not claim 1 might be indefinite. Exmark, page 19. The CAFC quoted Cox Commc’ns, Inc. v. Sprint Commc’n Co. LP, 838 F.3d 1224, 1232 stating “Functional language can ‘promote  definiteness because it helps bound the scope of the claims by specifying the operations that the [claimed invention] must undertake.’” Claim 1 of the ‘863 patent recites “said first elongated and substantially straight baffle portion being . . . disposed . . . in a chord-like fashion so that the cuttings from said first cutting blade will be deflected inwardly within the said circle defined by the blade tip path of said second cutting blade.” Although this language is recited in reference to the “chord-like” positioning of the baffle, the court extends the function of “deflecting clippings into the direction of the next blade” to also define the required length and straightness of the baffle portion. Exmark, page 19. Again, it is not clear a curved, wavy or jagged baffle portion could not direct clippings into the next blade if it were arranged to end the second arcuate baffle portion in a “chord-like” fashion.
Ultimately, the CAFC seemed to struggle in finding that the objective boundaries of the straightness of the recited “elongated and substantially straight” baffle portion could be understood by one skilled in the art with reasonable certainty. However, by suggesting that that “substantially” straight was at least “relatively” straight compared to the arcuate baffle portions, at least “some standard” (Exmark, page 18) for the required straightness was offered. Since the CAFC left open possibility that a somewhat curved baffle portion that is not quite as curved as the arcuate baffle portions and that directs clippings into the next blade might be interpreted as satisfying the “substantially straight” limitation of claim 1, this analysis may not be particularly satisfying to a competitor attempting to design around this particular claim feature.
The post Federal Circuit Sets the Record “Relatively Straight” on Indefiniteness appeared first on Haynes and Boone Blogs.