Good article today analyzing current trends in 101 motions, with a “surprising twist” involving the EDTX. (Okay, if you read this weblog, it’s not going to come as a surprise, but work with me here).
Following a jury verdict awarding damages for past infringement, the court and the parties have to work out what the appropriate form of relief for any future infringement will be, taking into account the availability of an injunction and the appropriate rate for any royalties applied to ongoing activity. In a recent opinion an EDTX judge addressed the situation where no injunction was sought, no enhanced damages issue was presented, and the sole issue was what royalty rate should be applied to future activity.
I am headed to Waco for Baylor Law Weekend to celebrate 25 years since I survived Louis Muldrow and Jerry Powell in Practice Court (actually that was last year, but I graduated in ’92). There is a Big O with my name on it at George’s tonight (if you have to ask, never mind), and I need to start early because we are playing OU tomorrow.
Oh yeah, and I get to see the offspring, who takes his first engineering exam today …
This morning the Federal Circuit granted the petition for mandamus in the Cray v. Raytheon case. First of all, congratulations to my cocounsel at Fenwick & West for obtaining that great result for our client Cray.
I have a brief analysis of the opinion and a copy for readers below, with some analysis on the decision’s “physical” analysis that may be of interest.
An issue that’s crept into recent opinions asserting improper venue post TC Heartland is which parties has the burden of showing that venue is not proper – the plaintiff or the defendant? Many cases defer deciding the issue since the outcome would be the same either way under their record, but one recent case did set out its take on the issue.
A recurring issue in patent cases is when a technical expert’s opinion is consistent with the Court’s claims construction, and simply opines whether infringement exists under the construction, and when it is not. A recent case provided three useful examples where an expert did – but in some cases did not – proffer opinions that were consistent with the claim constructions the jury would have to consider, or was otherwise permissible.