The most recent batch of bimonthly patent case scheduling conferences was held earlier this week in Marshall, and as usual I have a brief rundown of the results.
The day’s award for brevity goes to the attached minute order from a CDCA patent case which deals with an Order to Show Cause in a patent case involving the plaintiff’s failure to fully review a letter from defense counsel. The attorney “candidly admitted” that he did not fully review the letter regarding the pending discovery dispute, and gave as reasons that (1) the request for a meeting was buried at the end of a “dense” letter, and (2) the attorney was tired after an intercontinental trip. The attorney also suggested that defense counsel and the rest of his team were “a bit sly” in not raising the discovery issue in later face-to-face meetings and other pretrial communications.
“Good enough for me,” the Court wrote. “The OSC is DISCHARGED with no further consequences. Plaintiff’s substantive response to the motion will be filed and considered in due course.”
“According to the FedEx Defendants’ advertising, they are “everywhere” you need them to be,” Judge Gilstrap wrote in this opinion. “However, in their Motion to Dismiss Defendants argue that they are everywhere but this District, at least with respect to venue. The Court disagrees.”
The Court’s opinion in this case is useful on numerous pressing questions. First, post-Micron what activity (or lack thereof) constitutes waiver of a Fourco improper venue defense; and second, what activity is sufficient to constitute a “regular and established place of business”, as analyzed below, including related questions of burden of proof, imputing contacts, venue discovery, and infringing acts.
It’s purely coincidental that today’s Fed Ex delivery to my office was the ribbon copy of my patent, but it seemed to be worth memorializing in this post about Fed Ex. But yeah, I’m an inventor now.
As is only appropriate during a holiday week, last week a Tyler jury in Judge Schroeder’s court returned a verdict in Plaintiff Tinnus Enterprises’ patent infringement suit against multiple entities which were alleged to have infringed its patents on “Battle Balloons.”
So who got wet?
One thing I found very useful in putting together my presentation on the effect of TC Heartland on patent filings week before last (other than my William Shatner impersonation, of course) is a recent article Stats on How TC Heartland Is Affecting Patent Litigants by Chase Perry of Ankura in Dallas. I wanted to commend it to your attention, and explain why I found it helpful.
While I was cavorting in Plano last week, the Court issued General Order 17-24, which is the annual revisions to the local rules. Public commentary regarding the local rule amendments is being accepted through Thursday, November 30 , 2017. Comments should be sent to
U.S. District Clerk David O’Toole
William Steger U.S. Courthouse, Room 106
211 West Ferguson St.
Tyler, TX 75702,
The rule amendments will be effective December 1, 2017 unless otherwise noted in the general order (so as to coincide with the FRCP amendments).
The two that will be of the most interest to practitioners will be those changing (1) the procedures for filing under seal; and (2) the procedures for summary judgment briefing, but there are a few others that deserve brief mention.
Yesterday a Tyler jury in Judge Robert W. Schroeder III’s court returned a verdict in Network1 v. HP finding that the asserted claims were not infringed, and were invalid. I don’t have a copy of the verdict yet, but will add it when I get it.
Last week a Marshall jury in Judge Rodney Gilstrap’s court returned a verdict in favor of the defendant in a patent case involving four claims from three patents.
I’m still a day away from finishing the ILT IP conference in Plano, but already looking forward to Wednesday and Thursday of this week in NYC where I’ll be celebrating my 21st anniversary while participating in a panel Ethics in Patent Litigation – Jury Research, Including Use of Social Media at PLI’s 2017 Patent Litigation program.
I say “I” because I am fairly certain that Jamie will find something to do in midtown Manhattan other than watch me talk about jury research. But we’ll see if there’s a place open for dinner after I finish, and mark 21 years.
There’s no paper on this one, although my co-panelist Daniel Wolfe with DecisionQuest has prepared slides. I’ll just be opining on what I’ve seen be effective, and recent trends on the subject. I typically handle voir dire in the cases I’m involved in (I already know I’ll get laughed at for calling it “vore dyer” but it goes with the territory) so I may have a little to offer on the subject on what information on jurors is helpful, how to use it, and some potential land mines in collecting it.
I’m sure I’ll be up early that morning, since EDTX Judge Roy Payne is on the judge panels that morning. Maybe I can pick up some pointers on appearing in his court.
As I’ve posted previously, I am presenting tomorrow morning at the ILT IP seminar on The Effect of TC Heartland on Patent Venue. The paper got a little lengthy, even though I really only addressed a small number of post-TC Heartland cases. My defense is that I wanted to discuss the issues that have come up post-TCH using illustrative cases, rather than brief every decision finding venue proper or improper.
The slides, candidly, got away from me, but I had a lot – and I mean a lot – of charts on filing statistics that hopefully show some useful trends. Plus this is just going to be a fun presentation (because I’m just that boring) so I added a bit of what I consider humor. And I don’t really think 130 slides is too many for a 45 minute presentation, do you?
I hope subscribers find them useful. And as Judge Andy Hanen of the SDTX once told an audience regarding one of my papers, which he’d relied on in preparing a presentation on federal procedural issues: It’s a great review of the subject, and it’s also great for curing insomnia.