Second jury (employment discrimination) is back

A Marshall jury in Judge Gilstrap’s temporary courtroom in the historic county courthouse returned a verdict in favor of a Kilgore mail carrier yesterday in a civil rights employment case, determining that she had been fired for reporting that a black supervisor was mistreating the white female employees.  The trial began on Wednesday and finished yesterday.  The jury awarded $250,000 in damages for mental and emotional distress. As expected, that’s two down, with the antitrust case before Judge Schroeder resuming next week.

First jury (patent infringement) is back

The Marshall cases in trial before juries this week are actually an antitrust, an employment, and a patent case.  The patent case before Judge Bryson came back with a verdict for the plaintiff of $20 million Friday evening, breaking the 3-3 tie we’ve had thus far this year in patent verdicts.  Congratulations to the plaintiff’s local counsel, and … well defendant didn’t have any local counsel I can send out sympathies to. The case is one that I’ve posted on a couple of times, involving 

Triple-tracking jury trials

“Time is the quality of nature that keeps things from happening all at once.  Lately it doesn’t seem to be working.” 

Anonymous.

It’s a busy week in federal court practice in Marshall this week, with Judge Gilstrap, visiting Judge Schroeder from Texarkana and visiting Judge Bill Bryson from the Federal Circuit all conducting jury trials, forcing Judge Payne having to run up to Texarkana yesterday to find an available courtroom for a bench trial.  Not all are patent cases – there’s at least an antitrust in there somewhere, as well as a trademark dispute.

When we have three jury trials going on, one of the judges decamps across the street to the historic 1901 Harrison County Courthouse,
which the county makes available for overflow trials (I had three patent trials in it summer of 2012, and it’s an incredible space to get to work in).  

As the photos show, it’s obviously primitive accommodations, but we make do.

In addition, the timing worked out for all the judges to make last night’s meeting of the T. John Ward Inn of Court at our usual location, the Country Tavern outside Kilgore, where we heard from former U.S. attorney Malcolm Bales (who took the picture at left of the somewhat perplexed patent lawyers listening to his talk about these “criminal” cases they’ve heard about on TV).  Great stories and insights on his 29 years at the Department of Justice.

But the high point of the evening for me was when Judge Bryson was quoted as having analogized the job of a trial judge to fighting your way through a jungle filled with terrifying beasts, and his day job as an appellate judge as being better analogized to fighting your way through a natural history museum.

The bench trial finished yesterday, two of the jury trials should finish today, and Judge Schroeder’s is expected to continue into next week.

Clash of the 101 Motions: Motion to Dismiss Claims Versus Motion for Summary Judgment as to 101 Defense

Although most 101 defenses are raised via motions to dismiss under 12(b)(6), a few are brought under 12(c), and more than a few are either filed in or converted to the context of summary judgment.  But this case raises an interesting twist with the defendant seeking dismissal on 12(b)(6) grounds and the plaintiff seeking summary judgment that the 101 defense is without merit.  So let’s see how that worked out for them.

How Do You Know When The Case Is Over?

Ever had that situation where you think you have a settlement, but the other side doesn’t, or vice versa?  I mean in the absence of horned and breastplated opera singers, of course. That was the situation presented in this case, where the parties in a patent infringement case appeared to have settled their dispute, but the final settlement agreement fell through when Defendants learned that the Patent Trial and Appeal Board (PTAB) had instituted inter partes review (IPR) of one of the asserted patents. The Court found that

Show cause order re: attorney’s “systematic carelessness”

Yesterday I posted on a recent decision by Judge Gilstrap finding “exceptional case” status.  In that opinion, the Court addressed the effect of mistakes by lawyers, parties or principals.  Earlier this morning, Judge Gilstrap issued a “show cause” order as a result of what he said is “most charitably” described as an attorney’s “systematic carelessness” requiring the attorney to appear to show cause why his conduct does not violate Rule 11(b), and why appropriate sanctions under that rule should not be imposed. As set forth below, the party is a familiar one, although in a different context.

EDTX Creates Nonparty Liability in Exceptional Cases; CAFC Not So Much

I was working on an update on the Iris Connex case (you remember – noninfringement dismissal after expedited claim construction, $507,000 in sanctions against plaintiff and nonparty) when I saw Dennis Crouch’s summary this morning of the Federal Circuit’s decision in Asetek Danmark v. CMI USA (“Cooler Master”) (Fed. Cir. 2017) focused on the issue on enjoining a nonparty.

In light of that case, I realized that the time might be right for a detailed post on the issue of the new EDTX-created mechanism for nonparty liability, which I’ll refer to as a the “Iris Connex” test.

The significance of this new test appears to be starting to seep in – I just read an analysis of it in an article by some TBL partners that correctly noted it as evidence that “courts on the front lines of patent litigation, and particularly in the Eastern District of Texas, are more adept at addressing potential systemic abuses than reform-minded politicians.” 23 No. 25 Westlaw Journal Intellectual Property 1.  The specific proposals they were addressing were those in recent patent reform bills that sought to increase transparency in NPE cases to address exactly the abuses that the Court found in this case, but which ran into trouble trying to craft specific measures that didn’t cause other problems.  When faced with a “shell corporation” scheme to elude liability under Section 285, the article wrote that “the Eastern District of Texas created a solution – and set an example for other courts and patent litigants to follow.”  The article opines, and I think correctly so, that this may be another example of the courts developing an effective solution to a problems using existing tools before Congress legislates one.

But first, we need some background facts on the Iris Connex case.  After all, it is the one Judge Gilstrap described as “the clearest example of an exceptional case to yet come before the undersigned. Simply put, if this case is not an exceptional case, then there are none.”

The next 4,296 words are my attempt to summarize the case, its resolution, and its significance.  Pour yourself a cup of coffee, pull up a seat, and let’s get exceptional.