Earlier today Judge Rodney Gilstrap granted the motions to intervene in a patent infringement suit brought against a retailer by three suppliers. The motion was granted as an intervention as of right under FRCP 24, but the Court found intervention appropriate even under the standards for permissive intervention.
I’m sorry – I just can’t hear about a court “sitting in equity” without wondering whether everyone needs to reach in their briefcase and find their wigs. (I realize a few may already have them on, and guys, your secret – such as it is – is safe with me). That’s probably not quite what it looked like in Judge Mazzant’s courtroom in Sherman when he pressed “enter” to paste his electronic signature on the opinion in this interesting Lanham Act case dealing with remedies. But a good exposition of the law is always welcome, so let’s see what happened here.
In the old days, before people had to figure out how Daubert is pronounced (the family in the litigation pronounces it “Dobbert”, so you can be all French and everything, but you’d be all wrong too – and I say that as a French major), experts simply said what they said, and if the expert’s opinions were that poor, the jury not only disregarded them after the expert had been destroyed on cross, but punished the rest of your case too for presuming to waste their time with such awful testimony. Of course if your expert presenting the termite-ridden opinions was better than the lawyer cross examining them, things got interesting, but we’re not going to talk about George Greene right now.
One of the interesting things about damages testimony, specifically in patent cases, is that since the Federal Circuit has ruled certain economic calculations out as a matter of law for various reasons, the inquiry when determining whether a damages expert can testify as to an opinion at trial is not always simply that the flaws in the opinions go to the weight (with the experienced trial judge knowing that the system tends to be self-correcting because flawed opinions tend to kick harder than they shoot) but sometimes whether the opinion itself is legally impermissible under controlling caselaw.
The attached is a recent opinion out of Tyler where some of these allegations were levelled against a couple of experts, and the Court’s analysis provided hopefully some useful discussion of when flaws in the expert’s opinion fall on weight side of the scale, as opposed to admissibility. The point above – that bad opinions don’t do well at trial – may have been the lesson from this case as well.
You can never have too many cases to check to see whether a motion to dismiss for failure to state a claim under Twiqbal is going to be fruitful in a case – or not. Attached is a another example of one that was … not.
I wanted to flag this ABA Journal article on former EDTX magistrate Judge Don Bush’s “retirement” plans after leaving his magistrate judge bench in Plano last year. After becoming a certified emergency medical technician and paramedic during his last months on the bench, Judge Bush now works weekly shifts at a nonprofit urgent care clinic with an ambulance service.
It’s not as weird as it sounds – when Judge Bush was in college before he headed out to Southeast Asia for a few years with the U.S. Army, he worked in a hospital as a lab tech. His twin brother is a doctor and his son is an ER doctor. His son has been doing medical mission work in Haiti, and earlier this year he went to Haiti with his son, daughter-in-law and three of his grandchildren. He spent two days in the mountains and two in a village; and says that in four days, he saw around 700 people. (Which is about what he often saw in Plano, now that I think about it).
I’ve known Judge Bush since my law clerk days when he was trying railroad cases in Marshall, and almost got to help try a case against him a few years after that. I had several interesting patent cases in his court in Plano a few years back, and really enjoyed appearing before him. The story of how he mediated one of his own cases is still one of my favorites – my current firm was opposite us, and Clyde and I had more fun that afternoon than I have ever had in a mediation. One of our clients got sanctioned before the day was out, but you have to ask me for the story to find out which one. It all ended happily with a grant of summary judgment, which is actually a second story dealing with the unappreciated benefits to defendants of limits on summary judgment. (No one ever asks for that one).
And I’m not even getting into the SpongeBob stories, conversing with witnesses in Korean at trial in Marshall, or the approach a former railroad lawyer takes when handling patent cases (which made so much sense it made my teeth hurt). Don Bush has been one of my favorite lawyers for a long time, and we were fortunate to have him on the EDTX bench for 15 years managing a difficult docket in Plano. Glad to hear he’s still finding something useful to do with his time.
One of my favorite things is when the same court – meaning the same judge and in approximately the same time frame so you don’t have pesky things like intervening changes in the law messing up the comparison – issues orders going opposite ways on the same question based on the different facts in the two cases. The problem is somewhat similar to naval gunnery, where a ship begins an engagement by attempting to “find the range” to a target, with salvoes of shells falling short (and throwing up splashes that are then plotted) and then long as the gunners attempt to determine what trajectory finds the target. Once they “find the range” they attempt to direct as many shells as possible to that target. Where court opinions are somewhat different is that practitioners are acutely interested in where the shots change from short to long so they know at what point a court’s denials of a motion become grants – meaning which facts cause a court that would otherwise deny a motion to consider granting it. Yesterday I posted on a very recent opinion granting attorneys fees in a patent case under Section 285 against a “bulk filer” plaintiff. Two days later, the same judge denied a motion for fees against a different “bulk filer” patent plaintiff, giving us a unique insight into what facts can make cases different. So what were the facts in this new case?
George Bernard Shaw once said “I often quote myself. It adds spice to my conversation.” In that vein, in a May 5, 2014 article on the then-new Octane Fitness case making attorneys fees easier to recover, Texas Lawyer reporter John Council wrote:
The decisions also mean that patent practitioners should be wary of where they file their patent infringement claims, especially if their clients are nonpracticing entities who attempt to enforce patent rights against accused infringers in hopes of recovering licensing fees, said Michael C. Smith, a partner in Siebman, Burg, Phillips & Smith in Marshall.
“It’s going to become a ‘loser pays’ for nonpracticing entities in courts that have not seen a lot of these cases,” Smith said. “In courts that have seen a lot of these cases, they will expect plaintiffs to drop cases if they become insurmountable. And if they pursue it after that, they will get hung.’’
(Emphasis mine because, of course). This is the case that I was talking about.
An issue patent practitioners are always interested in is when a party’s conduct in a patent infringement case meets the test for “exceptional” case status so as to justify an award of attorney’s fees under 35 U.S.C. § 285. This case presents the situation as applied to a “bulk filer” plaintiff who filed 20 cases the same day in November 2015. If that date sounds familiar, it should – that was the “Thanksgiving Special” period where hundreds of patent cases were filed in the incorrect belief that the fast-approaching December 1, 2015 amendments to pleading requirements would not apply to them.
The most recent batch of bimonthly patent case scheduling conferences was held earlier this week in Marshall, and as usual I have a brief rundown of the results.
The day’s award for brevity goes to the attached minute order from a CDCA patent case which deals with an Order to Show Cause in a patent case involving the plaintiff’s failure to fully review a letter from defense counsel. The attorney “candidly admitted” that he did not fully review the letter regarding the pending discovery dispute, and gave as reasons that (1) the request for a meeting was buried at the end of a “dense” letter, and (2) the attorney was tired after an intercontinental trip. The attorney also suggested that defense counsel and the rest of his team were “a bit sly” in not raising the discovery issue in later face-to-face meetings and other pretrial communications.
“Good enough for me,” the Court wrote. “The OSC is DISCHARGED with no further consequences. Plaintiff’s substantive response to the motion will be filed and considered in due course.”
“According to the FedEx Defendants’ advertising, they are “everywhere” you need them to be,” Judge Gilstrap wrote in this opinion. “However, in their Motion to Dismiss Defendants argue that they are everywhere but this District, at least with respect to venue. The Court disagrees.”
The Court’s opinion in this case is useful on numerous pressing questions. First, post-Micron what activity (or lack thereof) constitutes waiver of a Fourco improper venue defense; and second, what activity is sufficient to constitute a “regular and established place of business”, as analyzed below, including related questions of burden of proof, imputing contacts, venue discovery, and infringing acts.
It’s purely coincidental that today’s Fed Ex delivery to my office was the ribbon copy of my patent, but it seemed to be worth memorializing in this post about Fed Ex. But yeah, I’m an inventor now.