This morning was my last meeting of my last State Bar of Texas organization. Today I finished my third and final year of as chair emeritus of the Litigation Section, completing 17 years on the Section’s governing council. After finishing my term on the board of directors and as chair of the Texas Bar Journal, this was my last group to rotate off of. The transition is a planned one and one reason why the weblog has been ramping up the last months, but it is still bittersweet – I have really enjoyed working with these groups, and wish them the best of luck with all the great work they are doing. Heading across the hall now (we’re in the SBOT annual meeting) to see what the Intellectual Property Law Section is up to. Maybe they need a volunteer …
One of the questions presented after TC Heartland was whether waiver would apply in the cases of defendants who did not assert the Fourco defense of improper venue prior to the Supreme Court’s decision TC Heartland. In a recent case an EDTX court reviewed recent decisions by other courts finding that waiver does apply and agreed, at least in the situation of a looming trial date.
I have commented repeatedly about EDTX judges’ use of the “mini-Markman” process to take up a limited set of claim terms that may be dispositive on an expedited basis. The idea is, of course, that if one or more claim terms will be dispositive of the case, as in Iris Connex, for example, it makes sense to focus on that on an expedited basis.
A recent case provides a good example of how the process works, with the court soliciting input as to allegedly dispositive claim terms and then setting a schedule for briefing and hearing those terms separately and substantially in advance of the regularly scheduled Markman hearing.
Good post recently by Justin Gray on his Gray on Claims weblog on patent case filings in EDTX post-TC Heartland. He notes that as of June 9, the post-TCH case filings are 18% in Delaware, 12% in EDTX and 10% in ND Cal, ND Illinois, and 9% in CD California. That is of course, down for EDTX from approximately 29% for 2017 patent filings pre-TCH, but up from 6% the week after the decision, as you see in the original post.
Right before I left for vacation I noted that Microsoft declined to assert a venue challenge after TC Heartland came out and instead proceeded to trial. That turned out to be a good decision, since two weeks later a Marshall jury in Judge Rodney Gilstrap’s court rendered a complete defense verdict, finding that the asserted claims were not infringed and were invalid.
As I posted a few weeks ago, Microsoft had engaged in an extensive but unsuccessful campaign to get the patents invalidated at the PTO, and the PTO activity actually limited the invalidity defenses that could be asserted at trial. This didn’t prevent the Marshall jury from finding the claims not infringed and that each was invalid. (Verdict form is below the fold).
Unless I’ve missed one, that means four plaintiff and four defense verdicts so far this year, with last month’s verdict invalidating one patent but not the other counting as a tie).
Just got back from vacation with the herd and in the mad rush to get out didn’t get a post up on this verdict from Tyler in Judge Schroeder’s court which gave both sides something to cheer about.
I’ll be adding other posts during the day (because of course the first day back in the office after vacation is a leisurely one). There’s another verdict and we now have three weeks of filing data post TC Heartland to examine. And no, Collin isn’t possessed, but we are making him sleep with garlic flowers for a few weeks just, you know, in case.
It wasn’t at a pretrial conference, but instead in an initial responsive pleading that Apple today challenged a plaintiff’s complaint for failure to state a claim under 12(b)(6), but did not challenge venue under 12(b)(3) under TC Heartland.
A little more information this afternoon on how TC Heartland is playing out on the ground in EDTX.
Biscotti Inc. v. Microsoft Corporation, 2:13cv1015-JRG-RSP is a patent infringement case that’s closing in on trial before Judge Gilstrap in Marshall. (Readers might recall my post on Judge Payne’s recent order on the effect of Microsoft’s IPR activity on its invalidity defenses at trial.)
In the course of the pretrial conference before Judge Payne earlier today, Microsoft noted in response to a question from the Court that it would not be asserting a challenge to venue in the EDTX as a result of the Supreme Court’s decision in TC Heartland.
Prior to the Supreme Court’s decision last week, the TC Heartland improper venue argument was made in a number of EDTX cases, and to my knowledge was uniformly denied based on the then-existing Federal Circuit authority. EDTX cases such as the attached are beginning to roll out establishing procedures for arguing (or in some cases rearguing) the effect of the case on a pending case.
Great video from Mike Maslanka on lawyers and depression. Worth a view whether you need it for yourself or to stay equipped (as we all should) to help others. Link is at: https://www.youtube.com/watch?v=pEvh7nfmBBA&feature=em-subs_digest