I am looking forward to participating in a panel The Impact of Heartland on District Court Litigation at the ABA Section of Intellectual Property Law’s 33d Annual IP Law Conference this Thursday April 19, 2018 at the Crystal Gateway Marriott in Arlington Virginia. Our panel also includes: The Honorable Sherry R. Fallon United States Magistrate Judge U.S. District Court for the District of Delaware Jennifer T. Salinas Partner, Troutman Sanders LLP Irvine, California Frederick L. Cottrell, III (moderator) Director, Richards, Layton & Finger, P.A. Wilmington, Delaware According to the conference materials we will spend an hour and a half discussing “the impacts of the Supreme Court’s Heartland Decision on Patent Litigation and Venue Challenges Across the Country.” They’re capitalizing all the nouns, so you know this is important stuff. The somewhat less breathless description of our topic states that “[t]he Supreme Court’s Heartland decision has changed the patent litigation landscape across the country. The impacts are most evident in active patent litigation Districts in Texas, Delaware, and California. Implications for those jurisdictions, as well as, other venue issues arising from Heartland will be reviewed and discussed.” And discuss them we will. I have really enjoyed working with my fellow panelists to prepare this presentation, and moderator Fred Cottrell has done exemplary work putting together one of the most informative slide decks on this topic that I have seen. We discuss what’s happening in the caselaw and then in our respective districts, so I’ll be talking about what has and hasn’t changed about litigating patent infringement cases in the Eastern District of Texas since Heartland. Most of the time my job seems to be to point out that most of the significant issues we will be discussing are up on mandamus at the Federal Circuit, so it might be best to take notes in pencil on this one …
It’s a beautiful morning in Marble Falls deep in the Texas Hill Country as my copresenter Tony Sauerhoff from Fifth Circuit IT security and I prepare to speak at the annual WDTX Bankruptcy bench/bar on the topic of cybersecurity for law firms.
I can’t access the paper at the moment, but I’ll add it to this post when I get back the piney woods tonight. (Subscribers click through for the link).
Was able to shoehorn in a couple of other events on this trip, including dinner with the Baylor freshman in Waco Wednesday night, breakfast at Magnolia Table in Waco yesterday morning (thank you Chip and Joanna!) a CLE planning meeting for this fall’s UT civil litigation seminar in Austin yesterday afternoon, and a quick trip to my favorite hobby shop in Austin for some new publications on 1942-era carriers. (There may have been a model or two as well).
I’ll be starting a two-site presentation on evidence next week at the TexasBarCLE Advanced Evidence and Discovery Course in Dallas. It’s the first of three CLE presentations on different subjects over the next three weeks, culminating in a panel on the effect of TC Heartland at the upcoming ABA IP seminar in DC on April 19. My paper deals with the nuts and bolts of getting evidence in. But as I discovered when I started working on the paper, most activity on evidentiary issues is now at the pretrial stage, with very little activity – at least in my practice – coming at trial, since most exhibits are preadmitted. So to my mind the most helpful paper on getting evidence in would be on how to list it, object to it, and respond to objections at the pretrial stage, with trial being something of an afterthought from an evidentiary standpoint. And what matters at those stages is, candidly, not quite what the rules indicate matters, so I tried to present the parts of the rules of evidence that practitioners should actually be spending most of their time worrying about. I always worry when I try to be helpful as opposing to reciting caselaw and listing rules as they appear in the rules, but I think the end result is pretty good. It is, candidly, troubling that even the slides are finished and off to the Bar eight days before the presentation, but even procrastinators fall short and get something done on time once in a while. Subscribers can download copies of the paper and the slides below. But no spoilers for attendees, okay?
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 firstname.lastname@example.org. I’ll credit you in the paper and online.
The annual Year in Review issue of the Texas Bar Journal is out, and as usual, I have the patent litigation update. It is at p. 39-40 of the magazine, and p. 19-20 of the attached article. As 600 word summaries of TC Heartland and In re Cray go, it’s one of the best you’ll read, uh, this afternoon.
And while I have your eyes on this post, another article is particularly worth mentioning, and that is the timely holiday season reminder by State Bar president Tom Vick (he’s the old one on the left) in his column Take Care In The New Year that attorneys are at higher risk for depression, anxiety and suicide than the general population, and the Texas Lawyers Assistance Program (TLAP) is there to help confidentially at (800) 343-8527. Importantly, it’s also there for you and I to call about colleagues that we think might be at risk, so if you see something, please make the call.
I know from when Tom and I were crisscrossing the state last spring that TLAP was something we both believe is one of the most important things the Bar does, and I’m glad to see him continuing to give it a high profile. So if you think it could help you or a colleague, please make the call.
(Ed. note: I never see the picture of Tom and I on the bar journal cover that I don’t smile, because what you can’t see is that because Tom is approximately 6′ 18″ tall, I am standing on two boxes so I don’t look like a hobbit, and we’re both trying not to laugh at the silly boxer pose the photographer has us in).
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 (email@example.com), with members James Hooper (firstname.lastname@example.org), George W. Jordan III (email@example.com), Cullen Kiker (firstname.lastname@example.org), Michael Smith (email@example.com), and William Ramey (firstname.lastname@example.org).
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.
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.
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.
As I’ve posted on previously, I cowrote and am co-presenting Jurisdiction & Venue: Where Does the Case Belong? at this year’s TexasBarCLE Advanced Civil Trial course with David Lopez of San Antonio. Davis covered San Antonio, aka the “fun” location last month, and I covered Dallas last week. Houston is not till October, and that’s usually a coin toss. No offense to you 214 and 713 lawyers – it’s just that you don’t have a lazy river and s’mores on site like the San Antonio hotel does.
Attached is the paper and the slides, credit for which goes solely to David. If you want to know why there’s a photo of Sam Elliot as Brig. Gen. John Buford in the movie Gettysburg … go watch Gettysburg and see what he says about the importance of good ground.
(Ed. note: picture of hotel not taken during my presentation).