2017 3Q Patent Filings Analysis: About Those Delaware Filings …

There’s a scene towards the end of 2010 where Dr. Floyd (Roy Scheider) looks out the window of the Leonov and sees that the colors of the planet Jupiter are … fading.  He doesn’t know why, but he knows it’s really, really significant.

I was reminded of the look on Roy Scheider’s face last night when I began looking at two reports that are now out analyzing the patent case filings for the third quarter of 2017.

You won’t believe who edged out Delaware in new patent filings the last three weeks of September.  And I think I know why.

Y.A. Tittle – 1926-2017

There are sad faces around Marshall today at the news of the death of NFL great Y.A. Tittle, who passed away over the weekend. Y.A. was born and raised in Marshall, played at Marshall High School in the 1940s, then after a significant recruiting battle between Texas and LSU went to LSU. (Other players from MHS who went on to play football for LSU include my dad – seven years after Y.A. and to significantly less fanfare – and Odell Beckham, Sr. in the 1980’s). He played ten years for San Francisco in the NFL, then led the New York Giants to three division titles before retiring in 1964.  He threw for more than 33,000 yards and 242 touchdowns and entered the Hall of Fame in 1971. Y.A.’s last visit to Marshall was three years ago in 2014, when he was present for the naming of the MHS football field house in his honor.  And his jersey has always had a place of honor in the museum that sits in the center of the square.  ESPN profiled him at that time, in an exquisite story Awakening the Giant that is well worth reading. RIP, Y.A.  We will miss you.

2017 Midwest IP Institute

Looking forward to today’s sessions at the 2017 Midwest IP Institute at the outstanding Minnesota CLE Conference Center in Minneapolis.  Lots of good speakers on tap, beginning with this morning’s keynote, CAFC Judge Jimmie V. Reyna. I am up on the panel on venue after TC Heartland with Susan Morrison and Aaron Myers, moderated by John Adkisson. John pulled current filings stats for us to discuss, as well as trends we are seeing in practice.  I had my first post-In re Cray venue hearing the day before yesterday, so I can relay what I’m seeing as far as briefing and argument as well.

Time is what prevents everything from happening at once. Lately it doesn’t seem to be working

My calendar knew that I am speaking at three events in the upcoming week on the effect of TC Heartland, but somehow it didn’t see fit to tell me.  So let me flag a couple in case you’re in the neighborhood, as well as mention a fourth presentation at the upcoming ILT IP conference in Plano in November:

Midwest IP Institute – Friday, Sept. 29 – 1:15 pm – I am on a panel at the Midwest IP Institute in Minneapolis.  As our panel follows CAFC Judge Jimmie Reyna, who was on the panel in In re Cray, we might have more insights than we’re currently aware of.

If you haven’t been to this event, the Minnesota Bar’s CLE conference facilities in the City Center Mall are the best I’ve ever seen.  I spoke there a few years back and am really looking forward to returning – with I could be there for both days, but there are claims that must be construed …

EDTX Bench/Bar – Thursday, October 5 – I’ve already posted on this one, but we have a great panel on the effect of TCH (and now In re Cray) to kick off the bench bar Thursday morning.  I’ll be moderating a panel consisting of

  • Judge Leonard Davis, Fish Richardson;
  • Dean Brad Toben, Baylor Law School;
  • Ted Stevenson, McKool Smith;
  • Wesley Hill, Ward, Smith & Hill, PLLC; and
  • Thomas J. Meloro, Willkie, Farr & Gallagher, LLP

We are hard at work making sure we have all the best analysis for attendees.

I’m also presenting on the same topic at the Institute for Law & Technology’s 55th Annual Conference on Intellectual Property Law in Plano, which I am co-chairing with Brian Gaffney of AT&T this year.  The conference will be November 13-14, and I’ll post more when – well, when next week is over.

Baylor Law Alumni Weekend

I am headed to Waco for Baylor Law Weekend to celebrate 25 years since I survived Louis Muldrow and Jerry Powell in Practice Court (actually that was last year, but I graduated in ’92).   There is a Big O with my name on it at George’s tonight (if you have to ask, never mind), and I need to start early because we are playing OU tomorrow.  

Oh yeah, and I get to see the offspring, who takes his first engineering exam today …

Order of Legal Writing (Cleaned Up) Evangelist and Hero

Thanks to @SCOTUSPlaces for the certificate.  I’ll get right on reprinting my business cards (and cleaning up my cites).  Waiting on the email with the info on the secret handshake, and being a long time member of KofC and KotHS, I’ll be disappointed if a funny hat isn’t involved at some point.

Again, for information on the “(cleaned up)” citation concept, see the ASAL post adopting it here.

Stays Pending IPR & “(Cleaned up)”

The issue of whether cases should be stayed pending PTAB review of the patent(s) in suit comes up not infrequently.  A recent opinion provides the most concise statement of what the Court characterized as its “consistent practice” on this point, as well as providing a good opportunity to explain what this “(Cleaned up)” business is all about.

“Cleaned up” is the current practice, hot in #appellatetwitter circles, of replacing extended explanatory parentheticals required by Rules 5.3 and 5.4 of the Bluebook with a simpler parenthetical that simply says “(cleaned up)” to make it more readable.  See #cleanedup.  The practice was recently adopted by the Annual Survey of American Law, which provided a useful explanation of the practice.

Typically I use (Cleaned up) to delete all the included citations in a quote, but preserve the included quotation marks for eau de binding precedent, but the quote in this case provided the opportunity to selectively edit the cites to focus on the money cites and quotes, which is a more elegant use of the tool, in my opinion.

I categorically deny that I am shamelessly pursuing a “Cleaned Up Roll of Heroes” certificate from @SCOTUSPlaces like the attached (although it would be nice.  I’m just saying).

Hearing on request to block Ezekiel Elliott suspension set for Tuesday in Sherman

The NFL Players Asssociation’s request for emergency injunctive relief preventing the NFL from suspending Dallas Cowboys running back Ezekiel Elliott has been set for a hearing in the EDTX courthouse in Sherman at 5pm Tuesday afternoon, September 5. Although ESPN is reporting that the request has been granted, I think they are misreading Judge Mazzant’s order, which simply set a hearing. But perhaps the TRO was granted separately.