EDTX 101 Update After Aatrix

Paradoxically, I’m going to celebrate receiving my second patent this morning (9,955,784 is my new favorite number) with analysis of what’s happening locally regarding the patentable subject matter defense under Section 101 following the Federal Circuit’s opinion in Aatrix Software, Inc. v. Green Shades Software, Inc., 882 F.3d 1121 (Fed. Cir. 2018).

I have had a few requests for some attention to that specific issue, and wanted to let people know what I’ve seen so far locally.

Life Goes On After Jason Witten: Patent Claims No / Contract Claims Yes = Attorneys Fees

It’s a sad day with Jason Witten retiring from our beloved Cowboys, so I decided I had to wear the jersey to work. Which made for interesting sidewalk conversation when I asked a herd of lawyers headed past my office how they were expecting their hearing with Judge Gilstrap to go, where they were on the docket, and which pretrial motions they had rulings on already.  (This time next week Law.com will probably be running a story about how homeless people in Marshall quiz visiting lawyers about federal civil procedure).

But life goes on … as it did for the parties in this case in which Judge Mazzant entered judgment for $24 million and change following a jury verdict last fall in which the jury found that there was no patent infringement but that there was a breach of contract, specifically a confidentiality agreement, and assessed $15 million in damages.

New Requirement on Local Counsel Attendance at Mediation

Who attends mediation for a client is a decision that has to take into account several requirements.  There are the local rules requiring mediation, the Court’s orders requiring mediation, either in general, specific to a case or really really specific to a case, i.e. Ms. X is required to attend, and perhaps a mediator’s suggestions or requirements as far as who should be there. While the requirements regarding attendance of clients have always been fairly concrete and contemplate usually a single key person with a certain level of authority, the requirements regarding counsel have not always been beyond the attendance of lead counsel, but a major recent development changes that in a lot of cases.

Substituting Witnesses

Well, this is an interesting fact situation.  A party’s expert experienced a medical event and it sought to sub in a replacement for trial.   At the hearing on the motion the Court determined that it needed more information on whether a replacement was needed.  Its solution was set forth in a sua sponte order.

2018 O’Connor’s Federal Rules * Civil Trials

Well look what showed up on my desk today.  The O’Connor’s series is 25 years old, and I’ve been working on the federal book for – can it really be 20 years?  I drafted a section in 1997 for the second edition of the book (it actually had no chapter on motions to transfer venue initially), and the next year had responsibility for two chapters, which then increased to five, to seven, and eventually to nine for many years with the late Greg Coleman handling discovery. I inherited that chapter as well after his untimely passing in 2010, and have been the sole updating editor ever since.

I still have their first book – the 1991 Texas civil trial book that we had to smuggle in and out of Practice Court at Baylor Law because Professor Muldrow banned it.  Most of the time being banned at Baylor meant something entirely different, but in this case he was outraged that the book made questions of civil procedure too easy.

It still does.  But you still have to read it first.

Under the Sycamore Tree (there are pretrial motions)

One of the most haunting moments of the season finale of the original Twin Peaks in 1992 was Jimmy Scott singing Under the Sycamore Trees as things got really, really weird. I think of this song whenever I read opinions in Sycamore IP Holdings v. AT&T, which gave us more to consider recently.  Actually, much, much more.

Congratulations to Larry Phillips – Judge, 59th District Court, Grayson County

Congratulations are in order to my partner of the last ten-plus year Larry Phillips, who recently won the primary for judge of the 59th District Court in Grayson County.  He has no opponent in the fall, and it is my understanding Governor Greg Abbott will be appointing him to the vacant bench next week. Larry was elected to the Texas House of Representatives in 2003 replacing Judge Ron Clark following Judge Clark’s appointment to the Eastern District of Texas bench, and has served there ever since, chairing Transportation and several other committees that he didn’t enjoy nearly as much.  (Insurance?  Please.) Larry has also been active with the Eastern District of Texas Bar Association, serving as its president a few years back, and was the third of our firm’s four partners to serve in that role. He will still get bossed around by a Siebman in his new job, as Grayson County’s veteran County Court at Law Judge Carol Siebman is down the hall. Congratulations Larry – we know you’ll do great.  It’s been a privilege being your partner, and I wish you the best of luck in your new job.

Supplemental (but not enhanced) damages awarded; case found “exceptional” under Section 285 due to litigation misconduct

This is the first weblog post I have written standing at the podium in an EDTX courtroom, but the counsel table chairs are too low to use counsel table, and nobody else is in here, so why not? My cocounsel Brent Carpenter and I just finished a jury trial in Judge Trey Schroeder’s court in Texarkana, and while waiting on the jury (which is still out) I saw that Judge Schroeder put out a 54 page opinion resolving postverdict motions in the Elbit v. Hughes case, include exceptional case fees, yesterday so I wanted to post on that.