Wednesday, September 03, 2014

The Blonder-Tongue Doctrine

I have a text book by Frank J Kahn titled Documents of American Broadcasting. It's a book of legal cases that shaped the broadcasting law of today. It is endlessly fascinating both in the details of the cases it includes... and those that it excludes. I was surprised today to find that it did not include the 1971 case Blonder-Tongue Labs., Inc. Vs. the University of Illinois Foundation.

The case had far reaching implications in patent law far outside of broadcasting. It's verdict created the Blonder-Tongue Doctrine which remains fundamental today. The doctrine states that a patentee is not permitted to re-litigate the validity of a patent that has been held invalid previously. The exception to this would be if  the patentee didn't have a full and fair opportunity to litigate the patent’s validity. Justice White considered this an issue of "collateral estoppel." So let us then examine the original 1971 Blonder Tongue case in all it's criminal glory. You can read patent US3369243 here.

The log periodic antenna was invented at the University of Illinois at Urbana-Champaign. It had not a sole inventor but a team: Dwight E. Isbell, Raymond DuHamel, John Dyson and Robert Carrell. (Paul Mayes developed a variant.) The University of Illinois Foundation patented the Isbell and Mayes-Carrel antennas and licensed the design as a package exclusively to JFD electronics in New York. Many antenna manufacturers totally ignored the patents and pirated the designs including: Winegard, Jerrold, Channel Master, Gavin and Blonder-Tongue. The University of Illinois sued and lost... and under collateral estoppel, they also lost the right to try to get it back.

The antenna was first built in 1958 by Dwight Isbell as an undergrad. It was going to be the perfect antenna for Color television. The University was probably very excited about all those future royalty checks. The problem was that it was a conceptually simple design... at least simple enough for other engineers to steal. Even if they didn't understand, Roger Carrel broke it down in great detail in his 1961 paper.  The University's deal with JFD required that U of Illinois defend the patent...somewhat reducing the value of the deal.

But UI pressed on and discovered that elderly judges were not the best audience for technical defenders of patent information. They lost against Winegard, in a dumb-as-bricks ruling that the LPD was no more than a set of known devices (dipoles) arranged according to the known principle of log-periodicity. But months later in Chicago the University beat Blonder-Tongue. they repeated that act on the Seventh Circuit court of appeals. This left two conflicting rulings. I'd guess that  no one was optimistic about even more elderly and less technically-adept judges resolve the rulings. But no one expected Chief Justice Warren Burger to go rogue.

Apparently Berger felt there were too many patent cases on his docket and was seeking a way to reduce the "logjam."  They ignored all the technical information, all the case information, all the appeals case information. instead the lazy clods ruled that because the patent had been previously ruled invalid in Iowa, that University of Illinois was now barred from defending the patent. the Supreme Court abdicated their duty as tie breakers and mete out justice based on the random chronological order of when cases came to trial in different states. It's totally the opposite of today's pro-patent bias. It would never happen today. Nonetheless, the law remains on the books.