It Is Not In The Heavens…

In Sport Dimension, Inc. v. The Coleman Company, Inc., the Central District of California recently issued an order denying plaintiff’s motion for attorneys’ fees under Section 285 of the Patent Act, notwithstanding the fact that the patent’s inventor ultimately issued an expert report for the plaintiff opining that plaintiff’s product did not infringe the patent–in–suit. The Court ruled:

“As its inventor, Mr. Steger’s interpretation of the D’714 patent is undoubtedly entitled to weight, but as Coleman argues, Mr. Steger is not a patent attorney or even an attorney. And as discussed above, a reasonable investigation requires ‘that an attorney interpret the asserted patent claims and compare the accused device with those claims before filing a claim alleging infringement’…”

Touché. In learning that the words of the patent’s creator are not enough, Sport Dimension may take heart from the following lesson from an utterly different context.

The Talmud recounts an extraordinary debate among certain rabbis, relating to the issue of whether an impure oven could be purified. A lone voice of dissent from the otherwise universal accord came from one Rabbi Eliezer:

On that day, Rabbi Eliezer put forward all the arguments in the world, but the Sages did not accept them.

Finally, he said to them, “If the halakha is according to me, let that carob­tree prove it.”

He pointed to a nearby carob–tree, which then moved from its place a hundred cubits, and some say, four hundred cubits. They said to him “One cannot bring a proof from the moving of a carob–tree.”

Said Rabbi Eliezer, “If the halakha is according to me, may that stream of water prove it.”

The stream of water then turned and flowed in the opposite direction.

They said to him, “One cannot bring a proof from the behavior of a stream of water.”

Said Rabbi Eliezer, “If the halakha is according to me, may the walls of the House of Study prove it.”

The walls of the House of Study began to bend inward. Rabbi Joshua then rose up and rebuked the walls of the House of Study, “If the students of the Wise argue with one another in halakha,” he said, “what right have you to interfere?”

In honor of Rabbi Joshua, the walls ceased to bend inward; but in honor of Rabbi Eliezer, they did not straighten up, and they remain bent to this day.

Then, said Rabbi Eliezer to the Sages, “If the halakha is according to me, may a proof come from Heaven.”

Then a heavenly voice went forth and said, “What have you to do with Rabbi Eliezer? The halakha is according to him in every place.”

Then Rabbi Joshua rose up on his feet, and said, “It is not in the heavens” (Deuteronomy 30:12).

What did he mean by quoting this? Said Rabbi Jeremiah, “He meant that since the Torah has been given already on Mount Sinai, we do not pay attention to a heavenly voice, for You have written in Your Torah, ‘Decide according to the majority’” (Exodus 23:2).

Rabbi Nathan met the prophet Elijah. He asked him, “What was the Holy One, Blessed be He, doing in that hour?”

Said Elijah, “He was laughing and saying, ‘My children have defeated me, my children have defeated me.’”

(Source, Jewish Virtual Library)