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Connected attorney reflects on patent film

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After seeing the film "Flash of Genius," about a man who sued the auto industry over what he claimed was his design for intermittent windshield wipers, an Indianapolis attorney who represented Mercedes (Daimler-Benz Aktiengesellschaft) against the real life Bob Kearns has his own take on the film.

"It's clearly a composite," said Donald Knebel, co-chair of Barnes & Thornburg's intellectual property department.

The film is based on an article that was published in The New Yorker, and input from Kearns' family. Kearns died in 2005.

Knebel said the film shows Kearns' legal fight against Ford regarding Kearns' claim that Ford intentionally stole his design for intermittent windshield wipers. Kearns won that lawsuit in the film and in reality.

In reality, Kearns also filed suit against Chrysler and won. Kearns filed suit against the entire auto industry, but after he refused to hire a lawyer after a judge at the federal level told Kearns he needed one to continue his case, the judge dropped that case.

Knebel added that Kearns went through a handful of law firms before representing himself pro se at the federal level against various American, European, and Japanese carmakers, likely because he wouldn't listen to or take their advice.

Even after winning large awards and receiving large settlement offers, Knebel said, Kearns didn't automatically take any of the money because he saw it as more important that the automakers publicly admit they intentionally stole from him and they should admit their fault by buying full-page newspaper ads, mentioning Kearns in manuals for cars that used the intermittent wipers, and in other ways that would associate Kearns' name with the invention. The film also shows Kearns turning down a total of approximately $30 million in verdict money, which really happened.

The film portrays the auto industry in an unflattering light, something Knebel said he wasn't too surprised to see based on the previews and what sells movie tickets for a David versus Goliath story.

But Knebel added that while the film sometimes portrays Kearns in unattractive ways - such as when he breaks into a car - they left out some of the seedier parts of Kearns' story.

For instance, "Kearns' son, a licensed private detective, surreptitiously obtained from the defendants' counsel's law offices confidential documents of the defendants. Kearns refused to disclose how he or his son had obtained the documents, but it was later determined that Kearns' son had obtained them from a paralegal at the law firm after he had developed an intimate relationship with her. The son also apparently took some of the documents himself. Kearns attached these documents to his motion for summary judgment on the issue of infringement," according to court documents from a decision of the United States Court of Appeals, Federal Circuit, in Kearns v. Wood Motors Inc., et al. Daimler-Benz Aktiengesellschaft and Porsche were also defendants in that suit.

Because of this action, the judge fined Kearns $100,000. Instead of getting the money from Kearns, "I collected the money (including interest) from a court account (that included Kearns' court awards) and sent the check to Germany," Knebel said, adding he wasn't sure if Kearns ever actually received any of the money he was awarded in court.

What does Knebel really find remarkable about the film?

"What's interesting to me is that the movie business would think a patent lawsuit would be interesting enough to be made into a movie," he said, adding that in reality patent lawsuits aren't always the most exciting types of cases.

Some of the true-to-life scenes added humor to the film, Knebel said, such as when Kearns asks himself questions in court, and when he brings in a beat-up old windshield, which really did happen.

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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

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