2016 saw 19 patent trials in the Eastern District of Texas. Plaintiffs won 43% in the patent-heavy Marshall and Tyler divisions, but the overall outcome was 52% due to three plaintiff wins in the traditionally less patent-intensive divisions of Sherman and Beaumont. The nine defense wins also saw five invalidity findings, so in almost half the noninfringement verdicts the jury (or in one instances the court) went ahead and invalidated the asserted claims as well. JMOLs Court watchers know how rarely verdicts are set aside on postverdict JMOL, but this year saw three. Judge Schroeder set aside the first VirnetX verdict in the spring, and Judge Gilstrap set aside the Gonzalez verdict on 101 grounds, as well as setting aside the damages verdict in one of the two Core Wireless trials. For statistical purposes I count JMOL outcomes on liability as wins for the defendant, which is why I am trying not to refer to “verdicts” this year, in most cases, but outcomes. Beaumont & Sherman Judge Mazzant tried two patent trials in Sherman this spring, and Judge Clark had one, a medical device case, in Beaumont last month. All three juries returned verdicts for the plaintiff, for $1.2 million, $6 million (later enhanced to $20 million) and $17.4 million (the medical device case). Tyler Plaintiffs almost broke even in Tyler with three outcomes for plaintiffs and four for defendants, with VirnetX chalking up one for each side during the year. The outcomes represent the range of patent verdicts, with VirnetX over $300 million, the second $22 million, and the third $324,000. Marshall Plaintiffs didn’t break even in Marshall either, with four plaintiff wins compared to five defense wins. The parties and the awards in those cases also illustrate an increasing trend in Marshall filings that I have posted on previously – the district in general and Marshall in particular is seeing more competitor cases and substantially fewer NPE cases, with only a few of the latter going to trial. Of the four plaintiff wins, two were by Core Wireless, which obtained jury verdicts of $3.5 million and $2.3 million, but Judge Gilstrap set aside the first for insufficient evidence. The other two verdicts – Genband’s $8.1 million and Arthrex’ $17.4 million were both in hotly contested cases between competitors. In fact four of the nine trials were between competitors, and of the three NPEs that did go to trial in Marshall, two out of three lost, with one losing its patent as well. Which underscores that asserting patents comes at some risk for competitors – interestingly all four of the trials in which juries invalidated patents were in competitor cases, while none of the patents asserted by nonpracticing entities were found by juries to be invalid (although as noted above, Judge Gilstrap did invalidate one postverdict). So the net outcome for NPEs in Marshall in 2016 was two losses, one win for $2.3 million and a second win for the same plaintiff on liability, but with the prior finding of $3.5 million to be retried.
It’s the time of year for 2016 reviews, and today’s Marshall News Messenger had one I thought readers might be interested in Judicial system in review: Marshall courts saw throng of good, bad activity in 2016 in which the paper’s local courts reporter Robin Y. Richardson lists the most significant events in Marshall courts both state and federal during the year.
Well, it counts as long as the cards were printed before Christmas. That’s my story. This year’s SBPS – Marshall Christmas cards are in the office and (slowly) going out. This year’s feature an original watercolor painting by Carol Pace “Thirty Years of Wonder”, which commemorates the 30th anniversary of Marshall’s Wonderland of Lights festival with a scene of ice skaters on the rink next to the historic old county courthouse.
Most of my workshop projects don’t involve repetitive tasks. Whether it’s a ship, a plane, or a spacecraft – kitbashed or scratchbuilt, generally there isn’t a need to repeat a task precisely – each is slightly different. But sometimes you run into a situation where a special tool allows you to address a recurring issue more efficiently.
Well, it pales in comparison to those billion-dollar verdicts they hand out in medical cases in Delaware, or even to the $85 million verdict from Oregon the last time these two competitors clashed, but a Marshall jury in Judge Roy Payne’s court rendered a verdict in favor of plaintiff Arthrex, Inc., a Florida-based maker of orthopedic products against competitor Smith & Nephew Inc. in a case involving allegations of copying of designs for medical implants.
Summary judgments of noninfringement are always worth noting when they come out because they give insight into how attorneys effectively persuade judges that a determination that is usually fact-intensive still doesn’t raise triable factual disputes. This was the case
I wanted to write about a couple of recent cases granting injunctive relief in the EDTX, but I can’t think very long about injunctive relief without hearing that the Schoolhouse Rock classic “Injunction Junction, What’s Your Function?” If you weren’t
One of the effects of O2 Micro is that the raising new claim construction issues on the eve of a trial is unfortunately not terribly rare. But few cases present a situation like this one where a party’s rebuttal expert reports served on the eve of trial triggered a complaint that they raised eleven (11) new claim construction issues, as well as three other broader ones. In reading the latest opinionby Judge Love, I had this mental image of a pitcher throwing a dozen balls at the same, forcing the umpire to make a dozen calls simultaneously. In general, the motions in
Remember Let’s Make a Deal with Monty Hall? The game show where contestants had to chose their prize by picking a curtain? Remember how badly the contestants wanted to change their mind after there was a goat behind the curtain they chose – and a new car behind the one they didn’t? Well, a somewhat similar situation was presented in Script Security Solutions v . Amazon.com, 2:15cv1030, in which
Back in 2014, New York Times reporter Ken Belson had an article on the front page of the Gray Lady on the declining status of tackle football in Marshall due to the risks of head injuries, Football’s Risks Sink in, Even in the Heart of Texas. It noted the cancellation of seventh grade tackle football, as well as the program offered through the Boys & Girls Club. It even quoted me on why my sons weren’t playing tackle football. “Smith’s oldest son played a couple of years of youth football,” he wrote. “but his two younger sons are not following him.” Well, yes, but it’s more because they’re about as fast as Galapagos turtles, and would rather play on the computer than go outside when it is, you know, hot. Even Grayson decided not to continue, not because of fears of head injury but of sweat. And of course because he preferred building computers, taking electronics apart and preparing for a career inventing things. (He’ll be starting college at a to-be-named engineering school next fall, and is lobbying me hard to get him a lawyer to help with his first patent application. Only I could have a kid who wants a patent lawyer for Christmas). Yesterday’s New York Times carried an updated piece Football Makes a Comeback in the Heart of Texas by Belson which tells the story of a new private tackle football program in Marshall founded by parents who wanted their sons to have the experience of full-contact football both to build character and to give them an opportunity to use football as a pathway to educational opportunity that they couldn’t otherwise afford. The article points out important demographic information about my hometown that is often missed due to the emphasis about the patent docket, including the role that football has played for generations in giving young people a chance at the education that can mean a better life for their families. That item is not an inconsiderable one because it’s where I came from – after a successful football career in Marshall, my dad went to LSU on a football scholarship where he also majored in – wait for it – engineering. The photo at right shows him in his glory days before the Tulane game his sophomore year. (Tiger fans will be able to date the photo based on his jersey designation – Daddy wore “E7” that year, and no, that’s not a typo.) After his playing days he and my mother resumed their courtship from high school in Marshall and they were living in Baton Rouge with my mother teaching at LSU after finishing graduate school when I showed up. So Geaux Tigers! It’s a good article, although the photos available online reveal the extraordinary depths of substandard journalism to which our mainstream media has sunk – the photos of a recent Marshall High School football game include a photo of a visiting band member from Hallsville. That is just not right, and I even suspect it’s a woodwind player. This shoddy journalism needs to stop. Cameras need to be on the Marshall band. And preferably the trombone players.