It’s Not All Rainbows and Ponies – Laura Shepperd

There are some loud people in Marshall, and Laura is definitely two of them.  And that’s a good thing.

Marshall being Marshall, when I started working with paralegal Laura Shepperd 24 years ago, she was the third member of her immediate family I’d worked with.  She helped break me in over the next 10+ years and teach me what would get you killed by your legal assistant, which is what we called them back then, with the exception of Scotty Baldwin, who simply yelled “goddamn Hiser” or, for variety, “Hiser goddamn”.  The problem was that anything Scotty said was so persuasive it was like listening to Charlton Heston call for bigger Post-Its as if the fate of the people of Israel depended on it, so I really missed when the old firm moved into bigger offices because you couldn’t hear him hollering for dear, sweet Jean.

Back when we were in high school in Marshall, Laura was active on our school paper, and then went on to pursue a degree in print journalism, writing for The Battalion at Texas A&M University as a student and then briefly as a reporter at the local newspaper. After raising three children and working twenty years as a legal assistant, she left legal work and began focusing on her writing.  I recently finished her debut, It’s Not All Rainbows and Ponies, a memoir about her treatment for alcoholism several years ago.  You can read about the book in the Marshall paper here, including an interview with Laura, but I wanted to take a few minutes to focus on her book and its subject of treatment.

Substance Abuse

It’s not news that substance abuse, including alcohol, is an issue in the legal profession – it’s something that the State Bar of Texas works very, very hard to help lawyers with through the Texas Lawyers’ Assistance Program.   One thing Laura’s book points out is that it isn’t just lawyers that suffer from alcohol abuse – the people around lawyers face the issue as well, including lawyers’ staff and families.

What her book does is detail her treatment for her problem – her trip to rehab, her experiences in rehab, and her successful return to sobriety.  What the book does not cover, as the Marshall paper inadvertently implied, is her successful treatment for breast cancer, which she was diagnosed with just days after the book was published last year.  But for her, the experiences were related.  “I definitely think overcoming my addiction helped me deal with breast cancer,” she has said. “My faith is so strong. My faith grew so much in rehab. When I was diagnosed, I knew God was with me and I would be OK no matter what.”  So a little known side benefit of rehab – it helps prepare you for cancer.

So why is this book worth your time?  First, it’s a good read, and second – we all need to know this.

Good Writing

The first thing that’s important to know about Laura here is that she can flat write.  Reading someone’s experience in rehab is not an intuitively pleasant experience, but she really puts you there.  She tells you – skillfully – what she was thinking and feeling, and not a page went by that I wouldn’t see a turn of a phrase and think “I wish I’d said that.”  She tells the reader what it was like, and gives the reader an understanding what rehab was like – the detox, the effect on her daily life, the emotions of leaving her family – and if you know Laura, you know that her family is even more important to her than the Fighting Texas Aggies (whoop!) and the Dallas Cowboys. (Personally, I think she’s faking the Texas Rangers thing, so I’m not including that).  When you read history like I do, sometimes you’re forced to endure some really bad writing in memoir form by a lawyer or a soldier or politician just because you want to know what they did.  This is not that at all – it’s the Memoirs of Ulysses S. Grant of rehab experiences. (Trust me – that’s high praise).  You’ll learn about rehab, but it’s not unpleasant, and what becomes clear not far in is that there is great love and pride in the experience – love and pride that she and others carry away to help them in their lives back home.

You Need to Know This

And that’s the other reason why you need to read this.  Whether you are contemplating seeking assistance yourself or advising or counseling a friend or family member that is, this gives you an insight into what it is like.  One thing that being around the State Bar has taught me over the last twelve years is that we serve our profession better when we can help each other.  Being able to counsel a colleague about treatment is something that ought to be in all our toolkits.  If we see a friend or colleague in need, we know to know what they can do to get help – see TLAP supra – and be able to talk knowledgeably about the process.

Why is that important?

Because deciding to get treatment in rehab is a scary, scary thing, Laura tells us.  It’s so scary I don’t see how she brought herself to do it.  But the scariest thing, she makes abundantly clear, is the uncertainty – the not knowing what’s going to happen next, and what to expect.  When her daughter carried her to rehab and dropped her off, she had no idea what it would be like.  But after reading this book, we do.  We know that nothing that happens there is something to be afraid of, and we understand from someone who’s been there that there is nothing as bad as doing nothing.  It reminds me of what Sting once said in a slightly different context.  “Marriage,” he told Rolling Stone, “is a hard, hard gig.  But the rewards are infinite.”  (Nobody tell my wife I analogized marriage to treatment for alcoholism, okay?)

Funny as Hell

The other  thing that you have to know about Laura is that she is funny as hell.  At least three times a page she would make some smartass remark to herself and I’d smile because I knew this wasn’t taxi wit – I’d heard her say it out loud before in real time.  If she was going to be in rehab, there was going to be humor found if it had to be at knifepoint.  My absolute favorite part of the book was when she decided to make a hobby out of harassing this one nurse every time she saw her.  If her pills were not right – it was that nurse’s fault.  If something wasn’t right with her blood pressure – well, you know it only happens when I see you Miss Louise …

It may be an East Texas thing, but I once heard an outsider observe that “the first thing you say about someone is always bad,” and if we like them, we do it to their face.  I remember Judge Hall was a master of it.  If he wasn’t complaining about you, it kinda hurt your feelings.  Laura loved the people she was around – but she still gave them a lot of shit.  Reminds me of a sweatshirt she once got her boss that said “I Yell Because I Care.”  It’s like that.  Or as Scotty would have put it, “Hiser, goddamn.”

You’ll like it, and you’ll learn something useful.  What more could you ask for?

Laches? Uh, no.

This isn’t exactly EDTX news, but the Supreme Court just eliminated laches as a defense in most patent cases, noting that Congress had provided a statute of limitations for patent claims, and that precluded a laches defense.  The decision wasn’t unexpected, since it had held the same thing for copyright cases in 2014. In fn. 4 of the opinion, the majority rejected the dissent’s argument that, insofar as the lack of a laches defense could produce policy outcomes judges deem undesirable, there was a “gap” for laches to fill, notwithstanding the presence of a statute of limitations, concluding that that was precisely the kind of “legislation-overriding” judicial role that it had disclaimed in the copyright laches case in 2014.  See Petrella, 572 U.S. at ___ (slip op., at 14). 15-927_6j37 (1)

ABA 32nd Annual Intellectual Property Law Conference

If you ask me, having a conference app mascot who looks like a possessed EVE from WALL-E standing between the columns on the Supreme Court’s porch is a little weird for a  masthead.  (And that’s from a guy who just posted on Santa Claus’ role on motions to transfer).  But DC is an interesting place these days.

In any event, the ABA’s forthcoming IP law conference on April 4-6 will be safely across the Potomac in Crystal City and the agenda looks to be a really good one, with Hot Topics at the PTO (including presumably, who’s the director this morning?), the IP aspects of cannabis, the wacky world of trademarks in Cuba, and then a triple-header set of receptions, which is a first for me.  First, there’s a Sponsor Reception, then there’s a Conference Reception: Taking it Back … To The ’80’s, and finally a LGBT Dessert Reception.  EDTX bench/bars usually don’t get that themed till Day 3.  And that’s just Day 1.

The conference is chaired by a friend of mine, Nicole Galli of Philadelphia, the brochure is below, and use the link above to navigate to the registration site.  It look to be a great conference.  And I officially want to party with the conference planners – this is a way more interesting lineup than most IP conferences.  Although I still think the app mascot is creepy.


Competitor Cases in EDTX Update

In an article in the latest issue of Texas Lawyer, John Council quotes U.S. District Judge Rodney Gilstrap of Marshall as confirming something that we’ve noticed in recent months in connection with the substantial drop in patent cases filed in EDTX. “Yes the overall numbers are coming down some,” Judge Gilstrap says, “but I think you’re seeing an increase in the competitors versus competitors suits instead of suits by nonpracticing entities. The mix is changing some.”

Lex Machina‘s Patent Litigation Year in review 2016 which came out last week provided some hard data to support this, showing “low volume” plaintiff filings trending upwards locally while at the same time “high volume” filings are trending down.  something similar.  Anecdotally I’m seeing the same thing – my two most recent trial settings are both competitor cases.  Not a NPE in sight. 

This week is a good example, as across Peter Whetstone Square, where legal reporters find to their dismay that the ice skating rink that is set up during Wonderland of Lights says Marshall Ford Lincoln, Judge Gilstrap is trying Michigan appliance manufacturer Whirlpool’s patent infringement case against TST Water, a competitor in the market for refrigerator water filters.  In a story in today’s Marshall News Messenger, local reporter Robin Richardson recounts Whirlpool’s crossexamination of the defendant’s founder and president.  Whirlpool is claiming that TST Water infringed its water filter patent by manufacturing replacement water filters compatible with Whirlpool refrigerators, and contends that as a result of the alleged infringement is has seen its sales drop significantly.

Incidentally, Whirlpool also filed an amicus brief in TC Heartland yesterday, claiming that it “is the number one major appliance manufacturer in the world, with approximately 93,000 employees and 70 manufacturing and technology research centers worldwide,” with its global headquarters and technology centers in Michigan, and that it has filed over 40 lawsuits to enforce its patents in EDTX. It wrote:

“Whirlpool has been sued in the Eastern District of Texas for patent infringement by multiple entities that could be called “patent trolls.” It has also filed many of its water filter patent infringement lawsuits there. Whirlpool’s experience as both a plaintiff and a defendant is that patent practice in the Eastern District of Texas is neither
abusive nor unreasonable. While “patent trolls” seeking nuisance value settlements no doubt file cases there, it is also an attractive venue for serious litigants looking to resolve meritorious claims. The reasons are not abusive: the judges are experienced with patent law, the local patent rules are predictable, and cases proceed to trial without undue delay. Whirlpool’s water filter patent litigation does not display any of the hallmarks of abuse emphasized in the briefing before this Court, yet Whirlpool has benefited from the experience, predictability, and speed offered by the Eastern District of Texas.”

Not that anybody asked me, but I would expect we’ll see a verdict tomorrow afternoon.


JMOL Rulings in Chrimar v. Alcatel-Lucent

Those who have been reading this weblog for a while know that I’ve got a thing for JMOL rulings.  They are hands down not just the most useful documents to review for a forensic understanding of what happened in a particular case, but also to learn what the requirements are for claims and defenses.

Pres. Underwood with a statue commemorating his tenure as Practice Court professor at Baylor Law School (I’m pretty sure)

My interest in JMOLs started before I even started practicing law.  In the winter of 1991 I was in my last quarter at Baylor Law School, preparing for my upcoming clerkship with Judge Hall in Marshall by interning for a federal judge in Waco and taking Federal Courts from Prof. Bill Underwood, who had just started at Baylor the prior year.  Prof. Underwood emphasized the importance of knowing the FRCPs by pronouncing that if we didn’t know the forthcoming Dec. 1, 1991 amendments to the FRCPs, we wouldn’t pass his class.  As a result, I spent the next ten years as (it seemed) the only lawyer east of Dallas that knew what the rules were on subpoena range – because they were in that batch of rule changes.

I have to mention that this was before Prof. Underwood became the Baylor Practice Court professor, a job he held before becoming Baylor’s interim president from 2005-2006, a job he did surprisingly well in.  I say “surprisingly” because it’s hard to picture a Baylor PC professor excelling in a job that doesn’t involve torturing law students.  It’s like finding out that Genghis Khan took a sabbatical from pillaging to run a successful Habitat for Humanity program.  Or a T-rex taking a break from chasing sauropods to set up a child care program for Triceratops eggs.  It’s just not expected.  I note that Professor Underwood has continued his career outside the fields of torture and despair enhancement as president of Mercer University since 2006, and I wish him well.  Again, I didn’t have him for PC, so this is easy for me to say.

Where was I?  Oh, yes, JMOLs.  Guess what else was in those Dec. 1, 1991 amendments?  The motion previously known as a “directed verdict” was renamed “judgment as a matter of law” and given a new scope.  And wouldn’t you know it, nine months later I’m minding my own business at the law clerk’s table in the courtroom in Marshall when Judge Hall grants one of these newfangled motions, sends the jury home, and promises a written order.

What came out of that 13 days later was Johnson v. Bekins Van Lines, 808 F.Supp. 545 (E.D. Tex. 1992) – one of the first reported cases using the new name and standard, and a foxhole’s-eye view as to the new rule in the most sensitive of contexts – a court deciding that the evidence was insufficient for the case to go to the jury.   I still have the advance sheet on a shelf in my office, and I’ve never stopped appreciating the unique insight that the explanations contained in JMOL rulings can provide into a case.

The most recent JMOL from the EDTX comes from Tyler, in

2017 Biennial EDTX Criminal Bench Bar Conference

The 2017 Biennial Criminal Bench Bar Conference for the Eastern District of Texas will be held on Thursday, March 9 and Friday, March 10, 2017 at the Center for American and International Law (CAIL), 5201 Democracy Drive, Plano, Texas. This conference is specifically designed for US Attorneys, CJA Panel Attorneys, Federal Public Defenders, and US Probation, but is open to Eastern District of Texas Criminal Law Practitioners is on a first come, first served basis – click here to register.  There is no registration fee for this event, and the agenda for the event is included below.


Twiqbal Day at EDTX Blog

One of the first issues to come up in a case for a defendant is determining whether a plaintiff’s complaint provides sufficient factual detail to make its claims “plausible.”  Where they may not, defendants often file motions under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), often referred to as Twiqbal motions.

Today features three recent opinions from the EDTX on Twiqbal in patent cases.  Since the humor (such as it is) builds across the trilogy, I would recommend reading Guidance first (and downloading the case and memorizing the important parts – you’ll know them when you see them), then Dismissed, then Standing.  Or, if it’s easier to think of them like papal encyclicals, Sub ductu EDTX, then Twiqbal Motus Negaverunt, and finally Nullam Stando.  Come to think of it, I think Paul VI did have a Nullam Stando

Book Review: Patent Litigation Primer: A Guide For Inventors And Business Owners – Robert A. Klinck

A couple of years ago I had the pleasure of working with a lawyer from Washington DC named Bobby Klinck defending a client in a patent infringement case in Marshall.

Shortly after our case wrapped up, Bobby told me that he had written a book on patent litigation, Patent Litigation Primer: A Guide For Inventors And Business Owners, which he explained to me was intended to help fill a gap that he saw in practice in the information available primarily to inventors and business owners.

Patent Litigation Primer gives new participants in patent litigation knowledge of the relevant legal concepts and procedures. It is, as its title reflects, primarily directed at inventors and business owners, but is also useful to people who regularly advise them, such as business lawyers, and specifically lawyers without in-depth knowledge of patent litigation.

Bobby has aggressively pruned the citations in the book, so with few exceptions if you already have had any experience in a particular portion of the world of patent infringement litigation, the book won’t be telling you something you didn’t already know – albeit in much more concise language. But what I was struck by as I read the book was how few participants have experience with all the different stages of the process, from patent prosecution to litigation to patent office proceedings.  The book covers them all.

For patent litigators, there is much here that is of interest because it isn’t what we deal with every day. When he goes through the more in-depth discussion of the substantive issues, the discussion is concise and helpful for confirming that you have identified and explained all the major issues to your client, but it is really more for your client to give them a working knowledge of the issues that you are talking about.  Judge Kinkeade in Dallas likes to joke that patent litigation is like Lord of the Rings, and not because there are trolls, but because the language is often not English at all.  This book fixes that.

There is an entire section dealing with litigation, and reading it I was struck by the realization that while while there is nothing here that anyone that has ever litigated a patent case from soup to nuts would not know, there are many, many lawyers litigating patent cases today that have not.  How many of us have experience advising a client, starting with the initial client meeting, when a potential patent infringement claim is worth bringing?  Similarly, many patent litigators, candidly, have never seen a trial that didn’t involve actors and a LCD display.  This helps remedy that.

I highly recommend Patent Litigation Primer as a reference guide for clients, and I keep a copy on my iPad for reminding myself of what exactly it is that a client might want or need to know about different parts of the litigation.

Patent Litigation Primer

Recent 101 Decisions from the EDTX

In a development that sounds suspiciously like someone who’s writing computer games for the Nintendo Wii is also following patent litigation, the  2013 game The Wonderful 101 contains a principal character named “Alice”, who is the main operator of the game heroes’ state of the art warship.  Here’s what we are told about Alice.

“Talented in ship controls and cannon warfare, the daring maneuvers Alice takes to save the ship from crisis often leave the rest of the team speechless. . . . She never says more than is absolutely required and her expression never reveals her true emotions, which has the unfortunate side-effect of making her look hard to approach to others.”

Well if that isn’t a good description of the caselaw on patentable subject matter, I don’t know what is.  At least we now have an avatar for Alice motions.  (Note to self: see if Shipping & Transit has a app out called Inequitable Conductors).  

There have been a number recent cases on 101 motions from EDTX courts, and I wanted to review them today, so be looking for posts as the day goes on.