This is a patent case in which the defendant sought to exclude the testimony of the plaintiff’s damages expert on five grounds. In the attached order, Judge Gilstrap granted the motion in part, as analyzed below:
A couple of years ago I had the pleasure of working with a lawyer from Washington DC named Bobby Klinck defending a client in a patent infringement case in Marshall.
Shortly after our case wrapped up, Bobby told me that he had written a book on patent litigation, Patent Litigation Primer: A Guide For Inventors And Business Owners, which he explained to me was intended to help fill a gap that he saw in practice in the information available primarily to inventors and business owners.
Patent Litigation Primer gives new participants in patent litigation knowledge of the relevant legal concepts and procedures. It is, as its title reflects, primarily directed at inventors and business owners, but is also useful to people who regularly advise them, such as business lawyers, and specifically lawyers without in-depth knowledge of patent litigation.
Bobby has aggressively pruned the citations in the book, so with few exceptions if you already have had any experience in a particular portion of the world of patent infringement litigation, the book won’t be telling you something you didn’t already know – albeit in much more concise language. But what I was struck by as I read the book was how few participants have experience with all the different stages of the process, from patent prosecution to litigation to patent office proceedings. The book covers them all.
For patent litigators, there is much here that is of interest because it isn’t what we deal with every day. When he goes through the more in-depth discussion of the substantive issues, the discussion is concise and helpful for confirming that you have identified and explained all the major issues to your client, but it is really more for your client to give them a working knowledge of the issues that you are talking about. Judge Kinkeade in Dallas likes to joke that patent litigation is like Lord of the Rings, and not because there are trolls, but because the language is often not English at all. This book fixes that.
There is an entire section dealing with litigation, and reading it I was struck by the realization that while while there is nothing here that anyone that has ever litigated a patent case from soup to nuts would not know, there are many, many lawyers litigating patent cases today that have not. How many of us have experience advising a client, starting with the initial client meeting, when a potential patent infringement claim is worth bringing? Similarly, many patent litigators, candidly, have never seen a trial that didn’t involve actors and a LCD display. This helps remedy that.
I highly recommend Patent Litigation Primer as a reference guide for clients, and I keep a copy on my iPad for reminding myself of what exactly it is that a client might want or need to know about different parts of the litigation.
A latecomer to the 101 analysis, but these orders just keep coming out… Earlier this month Judge Payne recommended dismissal of a patent for on 101 grounds in a consolidated case. He has now issued orders (exemplar below the link, as well as the original) extending that dismissal to the consolidated defendants. The cases arise out of litigation
A few weeks after Judge Gilstrap’s order in September 2015 dismissing the 101 defendant eDekka litigation on 101 grounds, Magistrate Judge Love recommended granting a similar motion in the Rothschild Location Technologies cases on January 4, 2016 – a recommendation that Judge Schroeder adopted several weeks later. That litigation originally involved around three dozen defendants. Judge Schroeder recently denied the plaintiff’s motion for reconsideration in light of the “101 spring” line of cases from the Federal Circuit in 2016 (Enfish et al.) which did not affirm district courts’ decisions to dismiss cases on 101 grounds. In his opinion, Judge Schroeder
I can never see this notice without remembering the quarterly post-exam bonfires of cases from law school. (Sniff, sniff). Somehow I doubt bonfires are involved any more.
In a recent opinion resolving a 101 defense via a motion to dismiss, an EDTX court noted that “Although procedure is often slighted in the context of § 101 motions, the Court does not take invalidating a patent at the pleading stage lightly.” Nonetheless, it concluded that the motion was well-taken and recommending invalidating the asserted claims. It was a dark and stormy night at the courthouse when