The Equitable Defense of Patent Misuse & Limitation of Damages Based on FRAND Principles

Equitable defenses typically don’t get a lot of attention in patent cases.  In this case the parties declined to present any evidence on the equitable defenses orally, instead submitting on the papers, but of course submitting additional briefing postverdict as well.  Accordingly, the defendant’s equitable defenses of patent misuse and limitation of damages based on FRAND principles were resolved postverdict in the attached findings of fact and conclusions of law.

Fees Set in Deficient Infringement Contentions Case

Several weeks ago I posted on Judge Payne’s order on inadequate infringement contentions, which culminated in an order that the plaintiff pay Defendants’ reasonable expenses, including attorneys’ fees, incurred as a result of several motions seeking to compel it to comply with the Local Patent Rules governing infringement contentions. The parties were unable to reach agreement on the amount of costs, and earlier this week Judge Payne issued his order resolving the issue.

Plausibility and Allegations of Infringement

The Twombly and Iqbal cases set forth the rule that to survive a motion to dismiss, a plaintiff must plead enough to state a claim to relief that is “plausible on its face.” None of this has anything to do with celebrated artist Cy Twombly, but it’s a good excuse to reference his work for those of you that enjoy that sort of thing.

Today’s EDTX Twiqbal guidance comes in the form of an order on a defendant’s renewed motion to dismiss  a patent plaintiff’s claims of willful and induced infringement as well as direct infringement

Four GD’s, two SOBs and one f-bomb comes to …

I just spent the last two days in depositions that were a model of decorum and professionalism by all involved, which reminded of one that wasn’t.

Once upon a time an EDTX judge was presented with a situation involving the use of coarse and profane language by a lawyer in a deposition.  (No, it didn’t involve Joe Jamail).

After considering all facts surrounding the deposition, arguments of counsel, and the attorney’s statement at the show cause hearing, the judge imposed a fine for the abusive behavior at his deposition.  But it’s how the fine was calculated that is of interest …

Findings and Conclusions on Section 101 Defense

A Lamkin next to a big old hairy Section 101 motion for summary judgment

Section 101 defenses of claims of lack of patentable subject matter can come up all many stages of the case – they can be the first rabbit out of the hat after a case is filed (a draft motion served before an answer is referred to as a Lamkin), during the pretrial phase of a case as a motion to dismiss, for judgment on the pleadings or for summary judgment, at trial (according to the CAFC) or even after trial.  That was how it came up in the attached case, where it was resolved by findings and conclusions after a trial on the merits of the infringement and invalidity claims.

Section 101 defense raised after trial


Withdrawing Deemed Admissions

Some afternoons it’s not the weather than sends chills down your spine but the thought that you could have been in a party’s position in a case you’re reading.  In the attached, Judge Mazzant denied a party’s motion to withdraw a party’s motion to withdraw and amend deemed admissions.  The order provides a useful guide on what facts are important when you find yourself in a similar situation.  Or, let’s be clear here – how not to respond to discovery requests.

February 2 Marshall/Tyler Patent Scheduling Conferences & Larger Filing Trends

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 compared to the last conference at the end of November, as well as the ones in September and July for longer term trends.
I am also comparing the results to the cases heard a year ago, since that tells us a lot about filings trends and how they’re affecting the docket.  The trend also bears some relating to recent data from other sources that I thought might be of interest.

Standards for Motions to Vacate Entry of Default and Default Judgment

Last month I mentioned a law professor of mine telling me that the thing that lawyers are most interested in learning about federal court is how to get out, hence the interest in standards for removal and remand.  It turns out that’s not exactly true – they are actually even more interested in the standards for setting aside default judgments (which includes the subsidiary issue of setting aside the clerk’s entry of default. This case by Judge Mazzant is not the freshest egg in the drawer, but Westlaw apparently just decided that it needed publishing, and after all, ten months is not such a long time.  So here are the standards you need if you find yourself in this very uncomfortable situation.