Willful Infringement & Summary Judgment

Two of patent litigants’ favorite topics come together in this afternoon’s essay by Judge Payne ruling on a defendant’s motion for partial summary judgment of willful infringement.  (Ever wonder why “infringement” has an “e” and “judgment” doesn’t?  I have, but just the once). So crack open a peanut butter cup, and let’s see what the Court had to say.

Every limine ruling is like a snowflake …

The analogy may be a bit overstated, but it is true that there are likely no two limine rulings that are the same.  Each case raises a different set of issues, each lawyer has a different level of comfort with having or not having a limine on certain issues, and even where the issues are ones that are frequently repeated, the rulings can vary slightly, depending on how the issues are presented.

A recent order by Judge Payne is actually adopting the parties’ “joint” set of proposed limines, but still illustrates some of these characteristics.  These are not issues that the parties disputed, but it is useful to see the types of issues that parties don’t dispute – but want a limine order on anyway.

Back to Back Spelling Bee Champs

The Marshall Chamber of Commerce gets to celebrate another year as Corporate Spelling Bee champs – we held off a strong challenge by Republic Elite, a local cabinet manufacturer. Remember to support your local adult literacy organization – click here for a search form for locate the one in your community.

How Many Judges Does It Take to Conduct a Markman Hearing?

Yesterday saw  a fairly unique proceeding in Judge Gilstrap’s courtroom in Marshall when he and Chief Judge Barbara Lynn (neither pictured at left) conducted a joint claim construction hearing in the case of Seven Networks v. Google & Samsung.   Judge Lynn has a related case in the NDTX, so several months ago the judges coordinated the proceedings to combine the Markman presentations.  While judges in numerous districts – including Judges Lynn and Gilstrap – have coordinated proceedings in related cases in different districts before, especially after the AIA required cases to be filed separately in more situations, conducting a joint hearing is, to my knowledge, a first. It will be interesting to see if the order is joint as well.

Marshall/Tyler patent scheduling conferences – September 11, 2018

If it’s the second Tuesday of an odd numbered month, there’s a good chance there are patent case scheduling conferences going on across the street at the Judge Hall courthouse.  This month was no different, with numerous cases heard for both Judge Gilstrap’s Marshall and Tyler dockets, as set forth below.

Marshall – Harrison County Literacy Council Spelling Bee

Dana Haden, Tim Huff and I will be defending our championship on behalf of the Greater Marshall Chamber of Commerce last year at the Marshall-Harrison County Literacy Council’s 2018 Corporate Spelling Bee in Marshall this Friday. The event raises funds and awareness for my mother’s favorite organization, the Literacy Council, which provides free, adult basic education, GED, English language, computer, and citizenship programs to help eliminate and overcome barriers so that all of our community members have the opportunity to pursue and enjoy more fulfilled and productive lives.

Even giant fire ants.

So here’s a reminder to locate an adult literacy program in your area and volunteer or donate.  Here’s a site that will hook you up with programs in your area.

“Stream of Commerce” & “Regular and Established Place of Business”

The Supreme Court’s recent opinion in TC Heartland has had the effect of shifting the focus of venue briefing in many cases from Section 1404 motions to transfer venue to Rule 12(b)(3) motions to dismiss for improper venue, often asserting that the defendant does not have a “regular and established business” in the district, as well as Section 1404 motions seeking a transfer based on convenience.

Because of the similarity of the former improper venue analysis to a motion to dismiss for lack of personal jurisdiction, those motions were sometimes brought together, even though to be successful, the latter had to show the lack of sufficient contacts with the entire state of Texas, not just the district.

This case presents both flavors of motions to dismiss in the case of automobile manufacturers and distributors, and required rebriefing of the convenience issues after the Court’s ruling on the first two motions.