Even though litigation support services will provide all manner of computer simulations, plasma displayed recreations, etc., the defendant relied on the more low-tech video camera. In support of its motion for summary judgment, the video showed Jean-Francois Gagnon, a “self-proclaimed” expert “builder of construction toys,” who was able to assemble the structures on the side of the Magnetix box “using only the parts included …and without any glue.” Monsieur Gagnon’s age was not stated in the ruling, which may have been relevant since the box was labeled “for children 8 to 100 years” of age. PlastWood objected claiming that video was unreliable, and that “the Gagnon video had several skips in it” suggesting omitted steps, or that the finished item contained an “internal structure” to hold it together – sacrebleu! Gagnon rejoined to all the challenges with a second video, containing no skips, on which he reconstructed the depicted items, even the Ferris Wheel – awesome! Now, when the patent attorney in the family is asked whether they ‘can build’ the Golden Gate bridge out of Magnetix or even Lego, there is precedent on which to answer ‘yes.’
It should be presumed that every patent attorney and agent developed some degree of skill in the art of assemblages made from Lego, Erector Set, perhaps Lincoln Logs – but, expertise? That perceived set of skills can be challenged when the side of a toy box depicts marvelous and majestic assemblages, which ‘you can build’ – but can you?
False advertising claims, between competing peddlers of the magnetic toy blocks, went out on summary judgment in PlastWood v. Rose Art, 2:07-CV-458 (W.D. Wash. 12/05/2008). PlastWood sells the SuperMag construction sets which competes with Rose Art’s Magnetix blocks. PlastWood alleged that the assemblages shown on the Rose Art boxes could ‘not be’ constructed. That reminds of the guideline when deposing engineers and scientists to never ask ‘can that be’ built or invented, because they are most likely to answer ‘yes’ (and it was just a rhetorical question anyway).