One of the phrases in trial practice that rarely makes it into writing is “opening the door”, so it was nice to see an order from a recent case ruling on a motion entitled Plaintiff’s Motion Regarding Door Opening Under MIL No. 3.
I wanted to go through the basics of what happened between the pretrial ruling granting the motion in limine excluding the bad stuff and the ruling at trial that the door had in fact been opened, which let the bad stuff – which, again, the party had succeeded in keeping out pretrial – in.
If you’ve ever tried to limine out evidence of IPR proceeedings, and seriously, who of us hasn’t, you might be interested in this issue.
I just posted on Friday’s Kaist verdict. For those keeping track, that’s two plaintiff verdicts and two defense verdicts in patent cases thus far, with plaintiffs going 1-0 in Tyler and 1 out of 3 in Marshall. We are not quite at the halfway mark for the year, but we’re close enough that I can provide some comparison between last year and this year as far as verdicts numbers and outcomes. (Spoiler alert – the result was 50/50 at this point last year as well, with the tiebreaker going to the defendant on damages).
A Marshall jury in Judge Gilstrap’s court found the asserted claims willfully infringed in the Kaist case and awarded $400 million. It also rejected all of the asserted invalidity defenses. The plaintiff is the intellectual property arm of a South Korean research university. The defendants are Samsung Electronics Co., Ltd, Qualcomm, Inc., and GlobalFoundries Inc..
A quick review indicates that this is the largest patent verdict in Marshall since January of 2011 in a medical device case, and the second largest in Judge Gilstrap’s court in the six-plus years he has been on the bench. The only one larger was a Tyler case, Smartflash, which he set aside in postjudgment proceedings.
I’ll post separately on where that leaves us on verdicts compared to last year, and will attach the verdict when it’s posted.
As I posted a few weeks back, I was named to the Law360 Intellectual Property Editorial Advisory Board earlier this year. Advisory board members are asked to identify specific, major trends, cases, or issues of importance in our practice area to help it plan Law360’s future coverage, and yesterday we had a lengthy call to discuss possible topics. (Spoiler alert: Section 101 is apparently still a big deal).
I won’t go into the topics suggested by other members or everything that I raised, but did want to note some of the topics that might be of interest. Especially given that trials, especially in patent cases, are rarer and rarer, I thought that topics dealing with trial preparation and practice would be of interest to readers. I think they’d break down into two broad categories:
- “how to/best practices” articles for lawyers on a discrete subject; and
- articles on trial court practices, especially in patent cases.
The latter is more something that the court would do, while the former is what lawyers should learn how to do. (Candidly, these are the topics I speak at at seminars and seem to generate the most interest).
Below is a rundown of the numerous specific topics that might be of interest under each. If readers have suggestions as to additional topics, please let me know and I’ll forward them. Again, the advisory board provided an enormous list of really great topics highlighting cutting edge issues in IP, so if your interest is in reading more about what is going on relating to Section 101, trust me, they know that.
This venue opinion is sort of a double-header, since it includes an order from Magistrate Judge Love, followed by a second order overruling objections to a different report & recommendation from Judge Love by Judge Schroeder. So maybe that’s a tripleheader, but the middle one is secret.
There are a number of significant recent venue opinions in the past few days – significant because they’re all from different judges. The week is getting busy with hearings and hearing prep, but I wanted to start rolling out commentary, beginning with this one from Judge Mazzant in Sherman.
The 2018 Tex-ABOTA Roundup ended Saturday night in Santa Fe with the traditional awards recognizing EDTX Judge Gilstrap as Tex-ABOTA’s 2018 Jurist of the Year, and as Champions of Civil Justice Debbie Keen and Dr. Joyce Johnson. The Dallas chapter nominated Ms. Keen, but when we learned she’s actually from Frisco, which is in the EDTX, we adopted her as well.
The East Texas chapter’s nominee Dr. Johnson of Stephen F. Austin State University’s Pre-law Academy could not be present because she was putting on the program for which she won the award, so her acceptance was a brief video.
The look on her presenter Rusty Phenix of Henderson’s face as her video played says it all. Everyone from East Texas was puffed up like a toad we were so proud. And of Judge Gilstrap too, of course.
You have to make it through a day of horror stories at this gig to get to the war stories, which are just priceless.
The Golden Age of Trench Warfare in South Texas – Darrell Barger
Trial Tactics of 50 Years Ago That Are Effective Today – Jim Brosnahan
United States v. Cliven Bundy – Bret Whipple
Next up was a very interesting presentation on the Cliven Bundy case from Nevada by Mr. Bundy’s lawyer, who explained the issues in the case, including the role played by Joe Frazier and the desert tortoise
The Effective Trial Lawyer – Richard Mithoff
As you can tell, this event is unusual as CLE in that it doesn’t contain a lot on how to practice law more effectively, and instead more on interesting applications of the law. To do otherwise with this crowd would be sort of like putting on a seminar for NFL players on how many yards are necessary for a first down.
But even NFL players can learn from a Hall of Famer, so every year we have a couple of presentations on how to do our jobs better from superlative examples of our profession, like Richard, who is, I must point out, a former law clerk to the late EDTX Judge William Wayne Justice.
Noticeably absent from yesterday’s parade of horribles was the traditional legislative update by David Chamberlain and Guy Choate. Turns out it was originally slotted between the presentations on murder for hire and torture, but Guy’s flight was delayed. So we got that presentation this morning, followed by a moment of silence. Thanks to our sponsors for distributing Kleenex afterwards.
One of the benefits of the annual event by the Texas chapters of ABOTA is the regular attendance by national ABOTA leadership, which gives us a chance to meet the leadership and talk with them about whatbis going on. An example is current ABOTA President Cynthia McGuinn from California, who spoke next this morning about the issues ABOTA and its members face. I had a chance to visit with Cynthia at the East Texas chapter dinner two nights ago, again at the reception last night and then again as we were leaving dinner. Those are the kind of opportunities we have at this event that I really appreciate. (Okay, the last was limited to how great the food was, but still).
This morning she talked about what ABOTA is doing to protect our right to trial by jury, and about what we can do to help. We responded by giving her a Texas flag, because that’s what we think someone from California would really want.