"Oho!" said the pot
to the kettle;
"You are dirty and ugly and black!
Sure no one would think you were metal,
Except when you're given a crack."
-Anonymous (excerpt)
The adage "the pot calling the kettle black"—referring to someone who is guilty of the very thing that he accuses another of—is a bit of equitable common sense that practitioners ought not to forget.
In a recent patent case, Tek Global S.R.L. v. Sealant Systems International Inc., the adage proved to be particularly apt. On remand from the Federal Circuit, Sealant Systems (aka the "pot") objected to, and asked to strike, the supplemental expert report of the plaintiff, Tek Global (aka the "kettle", or perhaps the "tekkle"). Sealant Systems complained that the supplemental expert report went beyond its permitted scope in addressing the Federal Circuit's construction of the disputed claim term "cooperating with." But too bad for the pot—its own supplemental expert also went beyond the permitted scope, speaking at length about a separate term "three-way valve" that the Federal Circuit did not address.
In his Order Denying Request to Strike Plaintiffs' Supplemental Rebuttal Report, Magistrate Judge Paul Grewal put it succinctly and memorably:
"Any number of legal doctrines might apply to this situation. For the sake of brevity, the court will simply apply one: 'pot, kettle, black.'"
Apparently, the analysis of "three-way-valve" in Sealant System's own expert report had exposed the "crack" in the "metal" of its own logic in moving to strike.
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