2018 EDTX Bench Bar – Day 3 – more dual tracks

The third day began with a pair each of patent and nonpatent options:

  • Artificial Intelligence – by former PTO director Michelle Lee
  • Local rules – moderated by me with an all-star panel
  • Decisionmaking & Bias
  • When You Find Out DoJ is Investigating your Client
  • Trade Secret Protections
  • Corporate Cyber Threats

The tracks then converged for a panel on the Fifth Circuit moderated by Chief Judge Gilstrap with Honorary Texan (and chief judge) Carl Stewart and Judge Catharina Haynes.  We then had a panel on local issues as seen from the perspective of in house counsel, and an interactive (and anonymous) segment on trial lawyers’ dual masters, judges and in house counsel.

I would write more, but I am just too damn tired.

2018 EDTX Bench Bar – Inaugural Texas Dinner in Honor of the Judiciary and the 7th Amendment; PTO Director Iancu remarks

The highlight of this year’s bench/bar conference was the inaugural Texas reception and dinner in honor of the judiciary and the 7th Amendment to the United States Constitution at AT&T Stadium.  The stadium was a big hit with attendees, who got to see themselves entering the field from the tunnel of the 150′ monitors over the field.

The program itself was great.  We were welcomed to the stadium by former Dallas Cowboys great Calvin Hill, who was the first to note the significance of the Constitution.  He was followed by S.C. Gwynne, who told the story of the reinvention of football from his book The Perfect Pass.   

He was followed by a special surprise presentation by Chief Judge Gilstrap to Chief Judges Carl Stewart of the Fifth Circuit and Sharon Prost of the Federal Circuit.  Judge Gilstrap unveiled framed “Honorary Texan” certificates for both signed by Texas Governor Greg Abbott.

The keynote address for the evening was by USPTO Director Andrei Iancu, who encouraged us to “[s]tep into the forests of discovery and innovation” and to focus on policies that encourage innovation. “Scaring our inventors and entrepreneurs is harmful,” he said, as is scaring policymakers.  Instead, he argued that we should work together to find narrowly tailored measures to correct faults in the patent system without harming innovation, and protect the innovation ecosystem by challenging harmful rhetoric. His remarks can be read in full here.

Director Iancu’s remarks were not made in a vacuum – their significance is set out in Richard Lloyd’s article here.

The evening concluded with the inaugural toast in honor of the 7th Amendment to the United States Constitution.

2018 Bench Bar – Thursday Afternoon Patent/NonPatent Tracks

Thursday afternoon attendees had a choice of barbecue or Asian food, and the buffet continued with the panels, with four dealing with patent topics and four nonpatent. The patent tracks were: – Patent Litigation Post SAS – Extraterritorial Remedies – Trying Complicated or Technical Patent Cases – Hatch-Waxman cases Meanwhile, across the hall extra chairs had to be brought in for the nonpatent topics: – New U.S. Attorney Rountable Discussion – Qui Tam Cases & The False Claims Act – Proving “False” Under the False Claims Act – Why Parties File in the Eastern District

2018 EDTX Bench Bar – “Lessons From My Cousin Vinny” – USDJ Joseph F. Anderson, Jr (DSC)

A highlight of Thursday is the lunch presentation “Lessons From My Cousin Vinny” by USDJ Joseph F. Anderson, Jr (DSC). Judge Anderson went through scenes from the film and other examinations to show what works and what doesn’t (and what is funny as hell).

Like many practitioners, I’ve seen quite a bit of “MCV” presentations.  This was the best.

2018 EDTX Bench Bar – Day 2 – morning

The bench bar was formally opened this morning by Chief Judge Gilstrap.  The panels for the morning have been:

– Patent damages

– Patent Litigation from the Federal Circuit’s perspective – with CAFC judges Prost, O’Malley & Taranto

– General Data Protection Regulation (GDPR)

– Supreme Court Update re: Patents – Tom Goldstein

– Venue Filing Statistics

– Venue in EDTX Post-TC Heartland

2018 EDTX Bench Bar – day 1

This year’s bench/bar kicked off this morning with a PTAB Bench/Bar in conjunction with the Center for American and International Law’s Institute for Law and Technology.  That was followed by a shooting excursion of the Frisco Gun Club and golf tournament at Gleneagles (which has a location change due to rain), and the Women Lawyers of the Eastern District of Texas (WLED) lunch.

The afternoon sessions were joint with the PTAB neck/bar, and consisted of five panels, which were:

  • Managing Parallel District Court and PTAB Proceedings (three panels focusing on stays, discovery, claim construction, estoppel, prosecution disclaimer, and best practices)
  • Patent Reform and the AIA
  • What Are In-House Counsel Looking for in Lead Trial Counsel?

The five sessions will be followed by a reception and then dinner on your own with the exception of the former law clerks and judges/bar leaders dinner.

EDTX Court Profile Provides Comparative Data Versus Other Districts in Patent Cases

It never fails – I’m on my way out the door to this year’s bench/bar when I get an email that Docket Navigator’s new “Court Profiles” are out, and the EDTX findings are just too significant to put off posting about till later today. They deal with EDTX relative to other districts on determinations of invalidity, infringement, and findings for patentees and patent challengers – and they aren’t the conventional wisdom.

N.D. Cal. on Joining Owners in Section 285 Proceedings

It was not quite two years ago when Judge Gilstrap ordered the nonparty owner of an unsuccessful patent plaintiff made a party for purposes of a motion for attorneys fees under Section 285 in Iris Connex.  That proceeding eventually generated an unappealed-from order making the owner jointly and severally liable for over $500,000, which I posted on here.

Hat tip to Rachael Lamkin for noting a recent similar decision from the Northern District of California, which is worth some analysis.

Motions for extension of time to respond

One of the more annoying recent FRCP amendments moved section (f) of FRCP 56 to Section (d), so that the habit of referencing “56(f) motions” seeking an extension of the time to respond to a motion for summary judgment to obtain additional discovery must now be changed to reflect references to 56(d) – which of course no one yet recognizes as the same thing. (Law clerks don’t count).

Contested Rule 56(d) motions are actually fairly rare in practice since most motions are filed after the close of discovery, and where they are not, or additional discovery is still needed, parties frequently work out by agreement the time necessary to obtain the additional discovery. Which makes an order like this that pops the hood on 56(d) to tell us what arguments courts find persuasive particularly useful.