Current Activity at the Judicial Panel for Multidistrict Litigation (MDL)

A few days ago I wrote a post that characterized the Judicial Panel for Multidistrict Litigation (MDL) as the perennial bridesmaid in patent litigation.  The reason why is that every time there is a major development that affects where patent cases can be brought, someone will suggest that the remedy will be for more patent cases to be handled in MDL proceedings.

I wanted to note some useful recent commentary on what the MDL panel is up to these days, and whether there are indications that MDL might be becoming a realistic option, either in patent litigation generally or Hatch-Waxman patent cases specifically.

Crowdsourcing Evidence Paper

I am presenting a paper “Evidence: Getting It In” at the State Bar’s 31st Annual Advanced Evidence and Discovery seminar in April and May in Dallas and San Antonio, respectively, and am already hard at work updating my standard materials on evidence. The problem is that the other speakers have taken some of the juicier bits and pieces of my evidence stories, so I am having to dig for tips and pointers that are a little less obvious.

So let’s try a little crowdsourcing here – readers, if you have any good evidence stories or tips, please shoot them to me at I’ll credit you in the paper and online.

Judicial Orders Providing/Encouraging Opportunities for Junior Lawyers

One of my favorite sayings is that “the work teaches you how to do it.”  Most of the time I think of that it’s when I’m trying to improve my woodworking or modelmaking skills, or teaching one of the boys how to do something – as with Parker here learning how to drive screws in the workshop using a socket screwdriver.  Understanding how it works isn’t the same as learning how to do it so that at the end of the operation you, the screw, and the workpiece are all still on speaking terms.  And in my experience the best way to learn is to take a handful of screws and just start learning how best to insert them while Dad is looking the other way.  It’s not hard to do – but initially it’s hard to do right.

One of the ways that translates in the practice of law is the overriding importance of trying cases before a judge and jury as an indispensable tool in developing as a trial lawyer.  I will never forget how suddenly clear the whole case became after my first solo trial in district court.  As I was packing bags after obtaining a win on liability but a loss on the amount of damages, I realized that the case wasn’t about all the things I had been worrying about, and was instead about just a few things – witness credibility being at the top of the list, but that’s a different post.  But I’d never have realized that if I hadn’t actually tried the case and seen firsthand in a case I prepared what mattered and what didn’t.  Those don’t just teach trial skills – they teach lawyers what matters in discovery and what doesn’t, and that makes future cases far easier and less expensive to develop.  We’ve all seen discovery fights where both sides are burning enormous resources over obtaining documents that the more experienced lawyers know will never see the light of day in court, nor influence the case’s settlement value.

In recent years, things have gotten decidedly worse for younger lawyers.  Fewer and fewer trials are taking place, and even hearing slots to hone argument skills before a real judge are scarce.  In an effort to remedy that for next gen lawyers, groups such as the ChIPs Next Gen Lawyers Committee are working to encourage opportunities for junior lawyers.  ChIPs is a nonprofit corporation dedicated to advancing women at the intersection of law, technology, and regulatory policy, and its Next Gen Lawyers website contains a summary of judicial orders providing or encouraging opportunities for junior lawyers, including orders from the Eastern District of Texas.

These orders get across what we hear from many judges – they are willing to give young lawyers a chance to argue motions and are open to a number of different ways that that can be done.  The orders show a wide range of tactics and incentives that help lead lawyers and clients provide younger lawyers with the opportunity to take speaking roles at hearings and trials.

The summary document can be downloaded here:


or accessed here, where you can also find copies of the orders.

If you are aware of additional orders or initiatives, please email

ChIP’s Next Gen Committee consists of:

  • Kathi Vidal (Lutton), Fish & Richardson (Lead)
  • Judge William Alsup, Northern District of California
  • Natalie A. Bennett, McDermott Will & Emery
  • Judge Christopher J. Burke, District of Delaware
  • Isabella Fu, Microsoft
  • Judge Paul Grewal, Northern District of California
  • Jessica Hannah, Apple
  • Karen Keller, Shaw Keller
  • Noreen Krall, Apple
  • Rachel Krevans, Morrison Foerster
  • Judge ​Barbara M. G. Lynn, ​Northern District of Texas
  • Julie Mar-Spinola, Finjan Holdings, Inc.
  • Sonal Mehta, Durie Tangri
  • Judge K. Nicole Mitchell, Eastern District of Texas
  • Judge Jimmy Reyna, Court of Appeals for the Federal Circuit
  • Gabby Ziccarelli, Blank Rome LLP

2017 Eastern District of Texas blog mugs

Individual subscribers have started receiving their 2017 weblog mugs commemorating the year’s most notable development in patent litigation, the U.S. Supreme Court’s decision in TC Heartland.

Of course, recognizing that the Court’s decision might not be everyone’s cup of tea, so to speak, the reverse of the mug provides readers with the ability to customize it to reflect their preferences.

Again, I have greatly, greatly enjoyed writing for subscribers this past year, and look forward to many years to come.  If any nonsubscribers want to get a mug, we have some extras, so email me and let me know if you want one while we still have them.  They’re $15 plus $10 shipping, but if you can pick up (or I can drop off – I have hearings in Marshall and Tyler this week) we can skip the shipping.

Archaeology, Motions for Reconsideration and Kinkeade the Dog

One of my interests is archaeology (which isn’t hard to tell, looking at the picture of me coming out of the Great Pyramid a few years back), and one of the things I’ve noticed that makes some digs more complicated is when the the language is also foreign.  Put simply, it’s easier and quicker for English-speaking archaeologists to understand the contents of a dig site in Colonial Williamsburg or London because to the extent they uncover writing, it’s relatively easy to understand what it says and means.  That’s not necessarily the case when dealing with medieval sites, and gets progressively more difficult when the work moves to ancient sites where the language require special expertise.
Patent litigation sometimes has a similar characteristic when studying procedural rulings because the significance of the facts and the conduct at issue may not be immediately clear to nonpatent lawyers – and even the rules at issue are different.  As NDTX Judge Ed Kinkeade (shown here with Kinkeade the companion dog – it’s a long, but heart-warming story that he would like you to read) is fond of saying, patent litigation is a little like Lord of the Rings because it has its own language, with its own creatures – trolls and elves and such.
Thus as entertaining as many of us find procedural rulings in patent cases, it’s sometimes easier to extract a usable ruling from a nonpatent case separated from the technical jargon and patent rules.  That’s the case in this ruling on a motion for reconsideration by Judge Amos Mazzant.  Who does not, to date, have a companion dog named for him, much less a picture with Roger Staubach, Tom Brokaw and a dog on the field at a Dallas Cowboys game either (I was there when Judge Kinkeade appeared on the 50 yard line holding a dog and I thought I had only had one beer at the time).  But on to the ruling.

The “Vindicator” of Infringement Contentions

Thought I wouldn’t be able to tie a patent case post to yet another aircraft from the Naval Aviation Museum, didn’t you?  Well, you’d be wrong.

Parker is pictured next to a spectacular restoration of an abysmal combat aircraft from World War II – the SB2U Vindicator dive bomber.  The Vindicator was state of the art when it joined the US carrier fleet in 1937, painted up all pretty with chrome yellow wings and white tails (carrier air groups were color coded back then, meaning that these are Saratoga aircraft, although on the Enterprise) here in that 1940 Fred MacMurray classic Dive Bomber, but by 1942 it was hopelessly outclassed and had been replaced by the SBD Dauntless.  Its last combat action was as part of a hand-me-down to a Marine unit at the Battle of Midway (filmed by Hollywood director John Ford at left), where ground crews had to use adhesive tape from the infirmary to keep the fabric on the wings from peeling off.  The aircraft’s performance was so awful that pilots took to calling them Vibrators or  Wind Indicators.

So what does this have to do with infringement contentions?

You know those truly awful contentions you sometimes get where you can’t tell what the plaintiff is contending, and the court grants the motion to strike and they replead and it still isn’t clear, and it’s hundreds of pages of completely unintelligible text?  These Vindicator-type contentions are what this case is about, and thankfully, it comes with an explanation of what the purpose of infringement contentions is, what not to do when an issue is raised whether they are compliant, and what relief you might be able to get when confronted with them.


One of my favorite parts of the day is seeing what the appellate lawyers at #appellatetwitter are up to.  They may be getting medieval on each other about the one space versus two controversy, the Oxford comma, or their special private brand of soft porn – font selection.

Recently, appellate lawyer Jason Steed made himself very popular by making mugs for the #appellatetwitter community.  In a scene reminiscent of the run on Beanie Babies the #AT community snapped up the first run, requiring a second in a stylish contrasting color, shown here seductively posed next to a dog-eared copy of a Bluebook.  (Stop and think about the work that would make a Bluebook dog-eared. On second thought, don’t).

I bring this up because individual subscribers will be seeing a package in the mail the next couple of days as a little first anniversary present for the new weblog.  I hope you like it.

Happy 10th Anniversary SBPS

It’s hard to believe, but today marks ten years as a partner with Siebman, Burg, Phillips & Smith, LLP.  I was looking at my post from the first year anniversary, and there’s not a lot that I would change.

I am still thankful for all the support from my partners and staff, and the many lawyers and clients I’ve had the privilege to work with over the past years, both in cases and through bar work.

But it’s a sad anniversary as well, since two of the people I called out in that post have since left us.  My new partner

Homer Reynolds passed away unexpectedly just after I wrote that post in 2009, and we still miss him.  Then, not quite four years ago in 2014, the person I described in 2009 as “my paralegal par excellence Pam Matthews, without whom nothing could get done (done right, anyway)” also passed away under tragic circumstances.  As I noted at the time, my favorite picture of her is at her desk on the day we moved into the oh-so-incomplete Hub offices in 2010, sans doorknobs, a/c and even light fixtures. I keep that picture over my desk in my office so she – along with Judge Hall, accompanied by an American flag as he always preferred – can keep an eye on me. And I can remember them.

It’s been a great ten years, and I look forward to many more.