This recent order resolves a motion to compel and for discovery sanctions in a patent case dealing with issues of (1) which products were actually in the case; and (2) whether a late disclosure was curable.
Joseph D. Brown was sworn in as the United States Attorney for the Eastern District of Texas on February 26, 2018, but had his formal administration of the oath at the Paul Brown (Joe’s uncle) courthouse in Sherman last Friday, April 13. Mr. Brown serves as the chief federal law enforcement officer in the Eastern District of Texas, an area covering 43 counties with a population of more than 3.5 million.
Prior to his appointment as United States Attorney, Mr. Brown served for 17 years as the elected Criminal District Attorney of Grayson County, Texas. From 2009 to 2014 he served as a board member of the Texas Juvenile Justice Department where he helped to oversee the administration of Texas’ juvenile prison and probation system.
He graduated from the University of Texas at Austin with a bachelor’s degree in Government and received his juris doctorate degree from Southern Methodist University Dedman School of Law.
Following his formal swearing in, many attendees headed to my partner Clyde Siebman’s ranch in Oklahoma for the First Annual Northeast Texas Southeast Oklahoma Regional Rendezvous Honoring Law Enforcement, which was sponsored by the North Texas Crime Commission, Judge Paul Brown American Inn of Court, Eastern District of Texas Bar Association and Women Lawyers of the Eastern District of Texas. Invited guests include the U.S.Attorneys for the Eastern District of Texas and the Eastern District of Oklahoma, North Texas/Oklahoma Federal SACs; District Attorneys, County Sheriffs, OSBI and Texas Rangers of the Red River Valley, as well as other honored guests.
The issue of when cases should be stayed due to pending IPR proceedings, and what effect those proceedings will have on the district court litigation if they are resumed are issues of interest to many patent litigators. This opinion issued earlier today addresses both.
I am looking forward to participating in a panel The Impact of Heartland on District Court Litigation at the ABA Section of Intellectual Property Law’s 33d Annual IP Law Conference this Thursday April 19, 2018 at the Crystal Gateway Marriott in Arlington Virginia. Our panel also includes: The Honorable Sherry R. Fallon United States Magistrate Judge U.S. District Court for the District of Delaware Jennifer T. Salinas Partner, Troutman Sanders LLP Irvine, California Frederick L. Cottrell, III (moderator) Director, Richards, Layton & Finger, P.A. Wilmington, Delaware According to the conference materials we will spend an hour and a half discussing “the impacts of the Supreme Court’s Heartland Decision on Patent Litigation and Venue Challenges Across the Country.” They’re capitalizing all the nouns, so you know this is important stuff. The somewhat less breathless description of our topic states that “[t]he Supreme Court’s Heartland decision has changed the patent litigation landscape across the country. The impacts are most evident in active patent litigation Districts in Texas, Delaware, and California. Implications for those jurisdictions, as well as, other venue issues arising from Heartland will be reviewed and discussed.” And discuss them we will. I have really enjoyed working with my fellow panelists to prepare this presentation, and moderator Fred Cottrell has done exemplary work putting together one of the most informative slide decks on this topic that I have seen. We discuss what’s happening in the caselaw and then in our respective districts, so I’ll be talking about what has and hasn’t changed about litigating patent infringement cases in the Eastern District of Texas since Heartland. Most of the time my job seems to be to point out that most of the significant issues we will be discussing are up on mandamus at the Federal Circuit, so it might be best to take notes in pencil on this one …
It’s a beautiful morning in Marble Falls deep in the Texas Hill Country as my copresenter Tony Sauerhoff from Fifth Circuit IT security and I prepare to speak at the annual WDTX Bankruptcy bench/bar on the topic of cybersecurity for law firms.
I can’t access the paper at the moment, but I’ll add it to this post when I get back the piney woods tonight. (Subscribers click through for the link).
Was able to shoehorn in a couple of other events on this trip, including dinner with the Baylor freshman in Waco Wednesday night, breakfast at Magnolia Table in Waco yesterday morning (thank you Chip and Joanna!) a CLE planning meeting for this fall’s UT civil litigation seminar in Austin yesterday afternoon, and a quick trip to my favorite hobby shop in Austin for some new publications on 1942-era carriers. (There may have been a model or two as well).
A Tyler jury in Judge Schroeder’s court returned a verdict yesterday in the latest VirnetX trial against Apple. It found that Apple’s FaceTime and VPN On Demand infringed four VirnetX patents and set damages at $502.6 million. It comes back today to begin the willful infringement portion of the trial. The first VirnetX trial in 2012 resulted in infringement and an award of $368 million for older Apple products. The Federal Circuit affirmed the infringement finding but required a new trial on damages. Judge Schroeder combined the damages retrial on the older products with the soup to nuts trial on newer products in February 2016, which resulted in a $625 million verdict. Apple convinced him to set that combined verdict aside, thus requiring the two cases to be retried separately. On the older products damages retrial the jury found $302 million, which the Court later enhanced to $439 million, and that verdict is on appeal – and now the second verdict on the newer products is $502.6 million. So the separate trials yielded verdicts of $804.6 million before enhancement, compared to the consolidated trial in 2016 of $625 million. How much of that is attributable to post-February 2016 sales I do not know.
A month ago I posted on patent filings in prominent patent jurisdictions in the first three months of 2018. Looking back at the last 90 days of filings, some trends are starting to solidify, and some are a little surprising, as the below analysis shows.
Dr. Joyce Johnston, East Texas
Congratulations to these accomplished and dedicated protectors of the 7th Amendment. Winners will receive their awards at the Tex-ABOTA Annual Dinner at the Inn & Spa at Loretto Saturday, June 10, 2018 in Santa Fe, NM.
Why, you might ask, does Tex-ABOTA have its annual meeting in New Mexico? When I was on the Tex-ABOTA board a couple of years back as the East Texas chapter president I heard the story. There was the usual annual feud, familiar to all Texas statewide groups, of do we do it in Dallas or Houston, or maybe Austin or San Antonio, and why not Fort Worth or Corpus, and those nut jobs in West Texas and East Texas keep wanting it out their way once in a while and if we do there the Valley will agitate to get into the rotation …
One year they decided to try Santa Fe as a neutral site for the annual meeting – and they liked it so much it never came back to Texas, and it’s become an increasingly popular annual trek for overheated Texas lawyers and their families. It is a great location and Jamie and I really enjoy a few days of cool weather, hot food, and an indecent dose of Dicky Grigg.
Again, congratulations to the winners – we look forward to the awards ceremony, but, candidly, it’s just an excuse to listen to Dicky. Anyone who deliberately seeks out and then commemorates his sponsorship of a men’s room at a law school he didn’t even attend is someone you want to listen to. Trust me. I have actually been to ABOTA meeting dinners where the table told nothing but Dicky stories for the entire meal – and he wasn’t even there. I am not making that up.
Since their initial adoption by the Northern District of California in the late 1990’s the concept of early, firm contentions – both for infringement and invalidity – has been a characteristic of patent local rules across the country. They represent a deliberate decision by the adopting courts to require parties in patent cases to take positions earlier than would be required under FRCP 26, and to require in most cases an order finding “good cause” to amend those contentions (certain amendments after Markman rulings don’t require an order but do require a certain showing). Judges that adopt such proceedings often claim that without them such complex cases would be unmanageable. Judge Ward, for example, asserted early during his tenure on the bench that patent cases needed such structure to be efficiently managed – and explained that as the reason why he adopted the N.D. Cal.’s patent rules for patent cases filed in his court.
Where a party doesn’t use one of the available mechanisms to amend its contentions, instead purporting to amend via email, interrogatory responses, smoke signals, or what have you – the outcome may be suboptimal, as this case shows. The case also shows that delay in moving to amend can have serious consequences.