Interesting article by former D.Delaware judge Sue Robinson in Law360 today – Does The Path To The Right Venue Have To Be Narrow? Her subject, and conclusion, is this:
“The mantra seen in more than one venue decision — that venue statutes should not be given a liberal construction — is based on language from cases resolving discrete legal issues not necessarily related to § 1400(b), or policy considerations and not statutory interpretation. Consider as well the context of this discussion — patent litigation, where the property at issue is constitutionally protected, the subject matter involves cutting-edge technology, and the disputes generally are national in scope. To transform the Olberding dicta into a general principle of statutory construction is, I propose, not mandated by Supreme Court precedent and, at least arguably, not consistent with a just determination of a proper venue as selected by an injured patent owner.”
It’s an interesting analysis of some of the cases discussed by the courts in TC Heartland and In re Cray.
Does The Path To The Right Venue Have To Be Narrow_ – Law360
The Intellectual Property Section of the State Bar of Texas has its latest TIPsheet out (Texas IP, get it? Patent lawyer humor). In addition to the chair’s article by Herb Hammond, the issue features an article on Employee – Inventor Remuneration Policies by Sushil Iyer.
This year, the Section’s Patent Committee formed the Patent Policy Subcommittee to provide thoughtful analysis of patent policy issues. The Subcommittee plans to highlight various stakeholder perspectives on policy issues through newsletter articles, with TC Heartland Changes Patent Venue Landscape by yours truly as the inaugural article. The Subcommittee also plans to address patent agent privilege, the constitutionality of inter partes review; patent legislation (e.g., STRONGER Patents Act); and patent eligibility. The Subcommittee is interested in hearing from Section members on these and other issues they would like it to examine.
The subcommittee is chaired by Roshan Mansinghani (firstname.lastname@example.org), with members James Hooper (email@example.com), George W. Jordan III (firstname.lastname@example.org), Cullen Kiker (email@example.com), Michael Smith (firstname.lastname@example.org), and William Ramey (email@example.com).
A copy of my article is attached below. Again, if you have suggestions as far as topics you’d like to see the committee address, just email any one of us and we’ll pass it to Roshan.
With In Re Cray clarifying to some extent when venue is proper based on the alleged existence of a regular and established place of business, cases are starting to get thumbs up or thumbs down on pending venue motions at an accelerating pace, providing additional analysis on where in the Cordis/Cray continuum they fit.
Like this one.
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.
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.”
Twin Rivers Discharge 11-28-17
“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.
One thing I found very useful in putting together my presentation on the effect of TC Heartland on patent filings week before last (other than my William Shatner impersonation, of course) is a recent article Stats on How TC Heartland Is Affecting Patent Litigants by Chase Perry of Ankura in Dallas. I wanted to commend it to your attention, and explain why I found it helpful.
I’m still a day away from finishing the ILT IP conference in Plano, but already looking forward to Wednesday and Thursday of this week in NYC where I’ll be celebrating my 21st anniversary while participating in a panel Ethics in Patent Litigation – Jury Research, Including Use of Social Media at PLI’s 2017 Patent Litigation program.
I say “I” because I am fairly certain that Jamie will find something to do in midtown Manhattan other than watch me talk about jury research. But we’ll see if there’s a place open for dinner after I finish, and mark 21 years.
There’s no paper on this one, although my co-panelist Daniel Wolfe with DecisionQuest has prepared slides. I’ll just be opining on what I’ve seen be effective, and recent trends on the subject. I typically handle voir dire in the cases I’m involved in (I already know I’ll get laughed at for calling it “vore dyer” but it goes with the territory) so I may have a little to offer on the subject on what information on jurors is helpful, how to use it, and some potential land mines in collecting it.
I’m sure I’ll be up early that morning, since EDTX Judge Roy Payne is on the judge panels that morning. Maybe I can pick up some pointers on appearing in his court.
As I’ve posted previously, I am presenting tomorrow morning at the ILT IP seminar on The Effect of TC Heartland on Patent Venue. The paper got a little lengthy, even though I really only addressed a small number of post-TC Heartland cases. My defense is that I wanted to discuss the issues that have come up post-TCH using illustrative cases, rather than brief every decision finding venue proper or improper.
The slides, candidly, got away from me, but I had a lot – and I mean a lot – of charts on filing statistics that hopefully show some useful trends. Plus this is just going to be a fun presentation (because I’m just that boring) so I added a bit of what I consider humor. And I don’t really think 130 slides is too many for a 45 minute presentation, do you?
I hope subscribers find them useful. And as Judge Andy Hanen of the SDTX once told an audience regarding one of my papers, which he’d relied on in preparing a presentation on federal procedural issues: It’s a great review of the subject, and it’s also great for curing insomnia.
Enjoying this morning’s sessions at the IP seminar at CAIL in Plano. Good morning updates on subject matter areas, and right now I’m listening to EDTX Judges Mazzant, Johnson and Love on the judges panel. This afternoon is a in-house counsel panel, followed by three ethics presentations (which attendees are telling me they really like having on the first day).
Slides are locked and loaded for tomorrow’s presentation on TC Heartland, and I will post both the paper and slides shortly.
Tomorrow is, of course the two track morning, with prosecution in the big room, and litigation in the hall classroom, following by lunch presentation on jury presentation in patent cases. That, in turn, is followed by panels on (1) 101; (2) IP in China; (3) New Frontiers in IP; and (4) IPRs.