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Vinson & Elkins L.L.P.

Eastern District of Texas Applies KSR v. Teleflex in Invalidating Patent
When the United States Supreme Court issued its ruling in KSR v. Teleflex this past spring, the legal community, patent holders, and accused patent infringers debated how trial courts would apply the revised standard for non-obviousness of a patent. Would judges—especially those in jurisdictions considered “patentee-friendly”— still be reluctant to invalidate patents under this new standard?

The Honorable Leonard Davis of the Eastern District of Texas gave an answer in mid-August when he issued a “take nothing” judgment for the defendants in AdvanceMe v. Rapidpay et al.

In a significant victory for Vinson & Elkins' clients Reach Financial, LLC and Merchant Money Tree, Inc., U.S. District Judge Davis found that all claims of AdvanceMe’s patent were invalid as anticipated and obvious. Judge Davis’ ruling also absolved V&E clients' AmeriMerchant, LLC and First Funds, LLC from liability in AdvanceMe v. AmeriMerchant et al., alleging infringement of the same patent and originally set for trial in January of 2008 in Judge Davis’ court. Since the court’s ruling in the Rapidpay case, AdvanceMe v. AmeriMerchant et al. has been dismissed.

“This victory is especially noteworthy because it is a textbook example of attorneys, clients, and industry witnesses seamlessly working together in a unique way to develop evidence of prior art,” says V&E Partner Brian Buss of Austin who was one of the lead lawyers representing the defendants. “It also provides a glimpse into how the Eastern District of Texas will apply the KSR decision going forward.”

V&E Partner Bill Schuurman, also one of the lead lawyers representing the defendants, explains that the Supreme Court’s decision in KSR rejected what it referred to as the Federal Circuit’s “rigid and mandatory” Teaching-Suggestion-Motivation (TSM) test and found that “Application of the bar [on granting patent protection to obvious inventions] must not be confined within a test or formulation too constrained to serve its purpose.”

Mr. Schuurman points to Justice Anthony Kennedy's comments in the Court's unanimous decision in KSR:

"When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill in the art has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense."

“The patent at issue in the Rapidpay case is precisely the type of patent at which the KSR decision is directed,” says Mr. Schuurman. “Even in the absence of the anticipatory prior art that Judge Davis found independently invalidates all relevant claims of the AdvanceMe patent, the KSR decision dictates that alleged inventions resulting from ordinary skill and common sense—such as that at issue in the Rapidpay case—are invalid as obvious.”

The Eastern District of Texas, especially over the past year, has been criticized by many who believe that defendants are at an extreme disadvantage in patent infringement cases filed there, according to Austin V&E Associate Joseph Gray, who specializes in Intellectual Property litigation. He points out that Justice Scalia, during oral argument at the Supreme Court in eBay v. MercExchange on March 29, 2006, even referred to Marshall, Texas, (also in the Eastern District of Texas) as a “renegade jurisdiction” when counsel for eBay noted that “no patent has ever been declared invalid in that jurisdiction.…”

“Judge Davis’ invalidity ruling in the Rapidpay case calls into question the opinions of those critics—at least with respect to the KSR decision,” says Mr. Gray. “Judge Davis heard all the evidence presented by both sides, reviewed the applicable law, and wrote a very thorough opinion finding that all relevant claims of AdvanceMe’s patent were invalid as both anticipated and obvious.”

Mr. Buss explains that Judge Davis first found that the methods implemented by Litle & Company, a payment processing company, in the early 1990s were precisely the methods that AdvanceMe claimed were novel in 1997, thus anticipating all relevant claims of the AdvanceMe patent.

“Judge Davis did not stop there—even though that finding alone is sufficient to invalidate all claims of AdvanceMe’s patent,” says Mr. Buss. “In the Eastern District of Texas’ first application of KSR, Judge Davis also found that AdvanceMe’s patent merely reflected a predictable variation of existing prior art methods.” Judge Davis wrote that “the [AdvanceMe] patent combines familiar elements with known methods to yield predictable results,” citing KSR. He went on to write that “Granting a patent monopoly to this technological advance that would have occurred in the ordinary course without real innovation retards progress and deprives prior inventions of their value”—adopting Justice Kennedy’s reasoning in KSR, says Mr. Buss.

“In the end, Judge Davis understood that AdvanceMe’s alleged invention was not novel. It had been used commercially, by many different companies, throughout the payment processing industry for years before AdvanceMe’s patent application was filed in 1997,” says Mr. Schuurman.

08-31-2007

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Thompson Hine LLP

Thompson Hine Continues to Grow International Trade & Customs Practice
Christopher Rassi has joined the Washington office of the law firm Thompson Hine LLP. Mr. Rassi, an associate in the International Trade & Customs practice group, was formerly a member of the Commercial & Public Finance practice group in the firm’s Cleveland office.

Mr. Rassi recently returned from a leave of absence during which he served as Associate Legal Officer in the Chambers of and the Office of the President of the United Nations International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania. During his time in Tanzania, Mr. Rassi served as legal adviser for a pair of ongoing trials related to the genocide that has taken place in Rwanda.

Prior to joining Thompson Hine, Mr. Rassi served as law clerk to the Honorable Yvonne Mokgoro, Constitutional Court of South Africa. In 2003, he was a Frederick K. Cox International Law Center Post-Graduate Fellow, clerking for Her Excellency Judge Weinberg de Roca, Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia and Rwanda in The Hague, The Netherlands.

On rejoining the firm, Mr. Rassi said, “I am pleased to be returning to Thompson Hine and working with the International Trade group. I know that the knowledge I gained and the experiences I had in Tanzania will be an asset to the practice of law at Thompson Hine. It was an honor to have served.”

Julia McCalmon, International Trade & Customs practice group leader, commented, “We are excited to have Chris join us in Washington. The learning experiences he had will be a true asset to our practice.”

Chuck Freed, Washington office partner-in-charge, added, “We are pleased to have Chris join our growing D.C. office.”

Mr. Rassi is admitted to practice in the state of Ohio. He is not yet admitted to practice in the District of Columbia, but his practice is supervised by principals of the firm.

Mr. Rassi earned his J.D., cum laude, in 2003 from the Case Western Reserve University School of Law, where he served as the executive symposium and topic development editor for the Case Western Reserve Journal of International Law. In 2003, he earned his M.B.A. from the Case Western Reserve University Weatherhead School of Management. In 2000, he earned his B.A. and M.A., magna cum laude, from Case Western Reserve University. Mr. Rassi is an International Visiting Fellow at his alma mater.

08-31-2007

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Stoel Rives, LLP

Sixteen Stoel Rives Attorneys Named as Mountain States Super Lawyers
Sixteen attorneys from the Salt Lake City office of Stoel Rives LLP have been chosen by their peers as "Super Lawyers," an honor bestowed on only about 5% of all lawyers in the Mountain States region.

The Stoel Rives attorneys named as Mountain States Super Lawyers for 2007 are listed below, along with the area of law in which each was selected:

* Keith Adams, Estate Planning & Probate
* John Anderson, Personal Injury Defense Products
* Ken Black, General Litigation
* Thomas Ellison, Real Estate
* Brent Giauque, Mergers & Acquisitions
* Ervin Holmes, Real Estate
* Richard Johnson II, Estate Planning & Probate
* Nathan Jones, Mergers & Acquisitions
* David Jordan, Business Litigation
* Danny Kelly, Bankruptcy & Creditor/Debtor Rights
* John Kirkham, Energy & Natural Resources
* Guy Kroesche, Real Estate
* Kevin Laurence, Intellectual Property
* Michael Mangelson, Intellectual Property
* Ronald Moffitt, Mergers & Acquisitions
* Gregory Monson, Utilities

The Mountain States Super Lawyers Directory is the result of ballots being sent to lawyers in the region asking them to name the best lawyers they have personally observed in action. Lawyers eligible to participate include those who have been in practice for at least five years.

08-31-2007

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Skadden, Arps, Slate, Meagher & Flom LLP

Skadden Wins Turnaround of the Year Award
Skadden was honored by Turnaround Management Association with its 2007 Mega Company Turnaround of the Year Award for our work on the Winn-Dixie Stores' restructuring. The award follows Skadden wins from the association in 2006 for Large Company Turnaround for our representation of Friedman's Inc. and Large Company Transaction for our work on America West Airlines Inc.'s merger with US Airways Group Inc. Winn-Dixie, one of the largest grocery store chains in the United States, converted $1 billion of debt into equity and emerged from Chapter 11 free of debt.

08-31-2007

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Skadden, Arps, Slate, Meagher & Flom LLP

Gateway Acquisition Is Marriage of PC Makers
Skadden is representing Gateway, Inc. in its approximately $710 million acquisition via a tender offer by Acer Inc. (Taiwan). Both Gateway and Acer are manufacturers of computers and printers. The acquisition, which is expected to close by December 2007, will create a multi-branded PC-company with more than $15 billion in revenues per year.

08-31-2007

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Skadden, Arps, Slate, Meagher & Flom LLP

Corporate America Picks Skadden for Deal Work
Skadden was mentioned more times than any other law firm hired by companies for corporate transactions and received the most overall mentions in the areas of commercial law and contracts litigation, corporate transactions, labor and employment litigation, and intellectual property in Corporate Counsel magazine's "Who Represents America's Biggest Companies" survey (September 2007). The magazine says Skadden "takes the cake" when it comes representing corporate America. Based on the magazine's research of public records, Skadden has ranked first or second on the corporate transactions list in each year it has been published; prior to this year results were based on surveys of general counsel at the Fortune 250.

08-31-2007

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Katten Muchin Rosenman LLP

Katten Partner Michael Rupe Named One of 40 Attorneys Under Forty to Watch in Illinois
Katten Muchin Rosenman LLP is pleased to announce that Michael C. Rupe, a partner in the Firm’s Bankruptcy, Reorganization and Creditors’ Rights Practice, has been named among the 40 Illinois Attorneys Under Forty to Watch by Law Bulletin Publishing Company, publishers of Chicago Lawyer magazine and the Chicago Daily Law Bulletin. Mr. Rupe is featured, along with the other recognized attorneys, in a special supplement to Chicago Lawyer and the Chicago Daily Law Bulletin, currenty available.

For the last seven years, Law Bulletin Publishing’s “40 Under Forty” has honored Illinois attorneys who show a passion for their profession, have had a series of successful outcomes and, above all, demonstrate a dedication and commitment to the legal profession. Honorees are chosen in a nomination process that evaluates candidates’ career achievements, advancement in their fields and community involvement. In recognizing Mr. Rupe, Law Bulletin Publishing wrote that, “He has, before the age of 40, already crafted an impressive legal career, serving as lead counsel for an array of lenders, private equity funds and their portfolio companies, and syndicated loan agents.” It also noted that, “Thanks in large part to Rupe’s work, Katten is now a preferred provider to a Fortune 10 company.”

“I am very pleased to see Michael honored as one of Illinois’ finest young attorneys,” said Vincent A.F. Sergi, Katten’s National Managing Partner. “Michael is an excellent attorney and this recognition is a testament to the quality of his work and his career achievements.”

Mr. Rupe, 36, concentrates his national practice in corporate bankruptcies, workouts and restructurings. He has acted as lead counsel for secured lenders, syndicated loan agents and participants, venture capital concerns and their portfolio companies, and borrowers/debtors in all aspects of in-court and out-of-court workout, restructuring and reorganization matters, including DIP financing and cash collateral matters. Mr. Rupe also represents sellers and buyers in connection with acquisitions and divestitures of distressed properties, with transactions occurring both in bankruptcy and outside of bankruptcy, including assignments for the benefit of creditors, receiverships and UCC sales. He also regularly acts as lead counsel for secured, unsecured and undersecured institutional lenders in workouts and bankruptcies involving a wide array of industries. Some recent matters in which Mr. Rupe has been involved include the bankruptcies of: Protocol Communications, Conseco, Archibald Candy (Fannie May), Jays Foods, United Airlines, Clark Retail, Gingiss Formalwear, Fleming Companies and Republic Storage. For his work in representing Archibald Candy, Mr. Rupe’s team received the M&A Advisor “2004 Deal of the Year Award” as well as the Chicago Turnaround Management Association’s “2004 Transaction of the Year Award.”

Mr. Rupe received his B.A. from The Ohio State University and his J.D. from University of Cincinnati College of Law. He also served as a judicial extern to the Honorable R. Guy Cole of the U.S. Court of Appeals, Sixth Circuit.

08-31-2007

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