While the rest of us were settling down to watch the election returns Tuesday a Tyler jury in Judge Schroeder’s court rendered a verdict in a patent case involving two claims from a single patent.
Let’s say you defeat an adversary in litigation, and you’re looking for assets from which a judgment can be satisfied. Can you get discovery into your former opponent’s disposition of assets? The answer is yes, but not prior to when you made your claim. Why? Because it would not be proportional to the needs of the case. This order makes that finding, but then defines what discovery would be “proportional” under the circumstances.
I’ve seen a couple of cases recently out of the EDTX dealing with breaches of settlement agreements. In some cases the complaining plaintiff (who in this case was the original plaintiff) seeks injunctive relief, but in this copyright case it is just seeking an order in a default situation that it is entitled to the unpaid payments due under the original agreement, as well as fees, costs, and since the infringing activity has resumed, a finding of liability and award of statutory damages. In essence, the hole for the copyright defendant just got twice as deep. (Pro tip: don’t default).
Admittedly this is a default situation, but it’s a nice template for what to seek when you have to go once more unto the breach.
Defendants in patent cases sometimes allege that a plaintiff has failed to comply with the marking requirement of 35 U.S.C. § 287, and thus that pre-suit damages are limited. As here, that motion often takes the form of a motion for partial summary judgment. The Court’s order in this case provides a useful exposition on the applicable standards for patent marking, and applies those standards to the facts of this rather interesting case to determine whether the pleadings were sufficient for the plaintiff to seek presuit damages in the first place, and if so, whether the defendant met its burden to allege a limitation, and if so (also) whether the plaintiff had satisfied its burden of compliance.
Wait – I went into the ditch here. On a motion for summary judgment, the final question is not whether the plaintiff had shown compliance, but actually just whether there is a factual dispute as to whether unmarked patented products were sold. There, I feel better.
This morning saw the first naturalization ceremony in the Marshall courthouse in quite some time. Judge Gilstrap conducted one in Tyler a couple of months back, but it’s not often they make it all the way to Marshall. It was standing room only, with a monitor and chairs in the hallway for the visiting schoolchildren and overflow guests, with the Daughters of the American Revolution (DAR) chapter that helps put the event on at counsel table. The Marshall High School Junior ROTC provided the color guard, and ETBU provided a choral group for the national anthem and “America the Beautiful”. As my old trombone choir professor used to say, there wasn’t a dry seat in the house. Or maybe that was just me. Anyway, for an outfit without trombones they were pretty good.
Judge Gilstrap spoke on the obligations and privileges of citizenship, and shook hands with the new citizens (from thirteen countries) after they received their certificates from the DHS representatives, and an American flag from the DAR. The local bar association provided lunch for the new citizens and their families at Miguel’s across the square, and the Harrison County Elections Office had a table for new citizens to register to vote.
Naturalizations locally are decidedly celebratory events with a great deal of participation by the community. It was a good day to be an American and welcome our fellow citizens.
This EDTX qui tam False Claim Act case deals with allegations arising out of mortgage practices, and offers a good example of the application of FRCP 12(e-f) (more definite statement/scandalous matters) to pleadings in the FCA “fraud” context.
Reading Markman orders is often like watching soccer while being an American. Only rarely does someone actually score a goal. This Markman is a good example. Dozens of pages of solid analysis, but it’s only at the top of p. 32 and again a few pages later that goals sneak up on you – when the Court noted that these were means plus function terms, and the lack of corresponding structure rendered the three terms indefinite.
This case has an interesting procedural history with respect to venue. Five months after TC Heartland the defendant filed a Section 1404 motion, but didn’t challenge venue as improper. That motion was denied, as was the mandamus petition challenging it. Ten months after the mandamus denial, after a change in lead counsel, the defendant filed a motion asserting improper venue. The order on that motion addresses several issues, including venue over foreign defendants, the geographic jurisdiction of the court, creative uses of the marking statute, and even more creative arguments regarding venue waiver.
Protective orders sometimes have provisions allowing only certain in house persons to see some types of confidential information. When these provisions aren’t followed, bad things can happen, as the allegations in this case show.