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Fraser case: no fishing expedition in fish product preparation case

By Lawrence B. Ebert, Esq.

Within a diverse opinion in the FRASER case on a patent claim for a method of preparing a fish product,
one finds an allusion to FRCP 56(f):

Nor does this court find that the trial court ?deprived Appellants of the opportunity
to have discovery.? Appellants? Br. 1. Appellants did not file a timely paper with the
district court asserting the need for further discovery under Fed. R. Civ. P. 56(f). Even
taking into consideration their pro se status, the district court was not obligated to
entertain Appellants? fishing expedition for material facts. See Paterson-Leitch Co. v.
Mass. Municipal Wholesale Elec. Co., 840 F.2d 985, 989 (1st Cir. 1988) (?cryptic
allusions [that] fail[] to set out any basis for believing that some discoverable material
facts . . . exist? are ?entirely insufficient to extract the balm of Rule 56(f)?).

Additionally, of summary judgment:

See Welch v. Ciampa, 542 F.3d 927, 935 (1st Cir. 2008) (?Although we give
the nonmoving party the benefit of all reasonable inferences, a party cannot rest on
?conclusory allegations, improbable inferences, [or] unsupported speculation? to defeat a
motion for summary judgment.?) (quoting McCarthy v. NW Airlines, Inc., 56 F.3d 313,
315 (1st Cir. 1995)).

The patent claim in question-->

A method of preparing a fish product comprising filleting a fish to
appropriate thickness, immediately immersing the filleted fish in a
vegetable oil for a period of 5 to 10 minutes at room temperature to effect
absorption of the oil to a depth such as to inhibit excretion of the natural
fluids from the fillet and prevent incursion of air and moisture, draining the
excess oil from the surface, covering the surface with crumbs and then
freezing the fillet.

Full post as published by IPBiz on July 09, 2009 (boomark / email).