Motions to dismiss insufficient defenses “or any redundant, immaterial, impertinent, or scandalous matter” are in practice a pretty rare bird, and orders resolving them even more so. So while there is not, regrettably, anything “scandalous” being dealt with in this recent order, it does at least take neglected Rule 12(f) out for a spin.
Two of patent litigants’ favorite topics come together in this afternoon’s essay by Judge Payne ruling on a defendant’s motion for partial summary judgment of willful infringement. (Ever wonder why “infringement” has an “e” and “judgment” doesn’t? I have, but just the once). So crack open a peanut butter cup, and let’s see what the Court had to say.
These postverdict orders arise out of a case tried last fall, and resolved the parties’ disputes over whether the jury’s damages award should be enhanced, and an ongoing royalty established.
The analogy may be a bit overstated, but it is true that there are likely no two limine rulings that are the same. Each case raises a different set of issues, each lawyer has a different level of comfort with having or not having a limine on certain issues, and even where the issues are ones that are frequently repeated, the rulings can vary slightly, depending on how the issues are presented.
A recent order by Judge Payne is actually adopting the parties’ “joint” set of proposed limines, but still illustrates some of these characteristics. These are not issues that the parties disputed, but it is useful to see the types of issues that parties don’t dispute – but want a limine order on anyway.
Yesterday saw a fairly unique proceeding in Judge Gilstrap’s courtroom in Marshall when he and Chief Judge Barbara Lynn (neither pictured at left) conducted a joint claim construction hearing in the case of Seven Networks v. Google & Samsung. Judge Lynn has a related case in the NDTX, so several months ago the judges coordinated the proceedings to combine the Markman presentations. While judges in numerous districts – including Judges Lynn and Gilstrap – have coordinated proceedings in related cases in different districts before, especially after the AIA required cases to be filed separately in more situations, conducting a joint hearing is, to my knowledge, a first. It will be interesting to see if the order is joint as well.
Seems like just yesterday I was posting on a recent decision by Judge Gilstrap addressing whether a trial should be bifurcated into different proceedings, and why that is or is not a good idea. This case which came out earlier this afternoon addresses the same considerations, but under a different set of facts.
If it’s the second Tuesday of an odd numbered month, there’s a good chance there are patent case scheduling conferences going on across the street at the Judge Hall courthouse. This month was no different, with numerous cases heard for both Judge Gilstrap’s Marshall and Tyler dockets, as set forth below.
A trip to the West Coast for a mediation kept me from posting this earlier, but Judge Schroeder’s unredacted opinion in the VirnetX case resolving the postverdict motions is now out, and provides the latest analysis on many issues of interest to practitioners, including most notably enhanced damages, as none were awarded.
Apologies to Yeats, but it is referred to as the “most thoroughly pillaged piece of literature in English literature”, so piling on is permitted. Judge Schroeder entered another final judgment in the VirnetX case last week after denying defendant Apple’s most recent JMOL and motion for new trial. The order itself is filed under seal for the moment, but will be unsealed, less any needed redactions from the parties, on September 10. VirnetX – final judgment VirnetX – sealing order
A Marshall jury in Judge Gilstrap’s court deliberated through 6:15 pm Friday evening in this case, came back for two hours Saturday morning, and finally completed deliberations yesterday morning, returning a verdict in favor of the plaintiff for approximately $10 million. I wanted to address in this post a couple of issues that aren’t in the major media coverage of the case, but might be of interest to practitioners.