The most recent batch of bimonthly patent case scheduling conferences was held last week in Marshall, and as usual I have a brief rundown of the results.
Following a jury verdict awarding damages for past infringement, the court and the parties have to work out what the appropriate form of relief for any future infringement will be, taking into account the availability of an injunction and the appropriate rate for any royalties applied to ongoing activity. In a recent opinion an EDTX judge addressed the situation where no injunction was sought, no enhanced damages issue was presented, and the sole issue was what royalty rate should be applied to future activity.
A recurring issue in patent cases is when a technical expert’s opinion is consistent with the Court’s claims construction, and simply opines whether infringement exists under the construction, and when it is not. A recent case provided three useful examples where an expert did – but in some cases did not – proffer opinions that were consistent with the claim constructions the jury would have to consider, or was otherwise permissible.
My new favorite verdict form is the one from this case, where the foreperson wrote in “no infringement”. Alas for the defendants, they wrote in $15 million in damages and $2 million on attorneys fees on the rest of the claims, as detailed below.
There are not a lot of personal jurisdiction cases since Daimler AG v. Bauman that provide a current analysis of the law on personal jurisdiction challenges, so this recent opinion from the EDTX is useful for those wanting to update their standards.
Several recent opinions out of the EDTX provide litigants with more data points on enhanced damages – when are they appropriate and when are they appropriately set aside – on how future royalties are calculated, and and on when Section 285 awards of attorneys fees in “exceptional cases” are appropriate. They also provide a helpful analysis of which non-taxable fees and expenses are not recoverable under Section 285.
The Beaumont division of the United States District Court for the Eastern District of Texas will resume normal operations on Monday, September 18, 2017. Please refer to General Order 17-14 regarding filing deadlines and General Order 17-17 regarding continuances that may have been affected by the court closure.
One day a year I have to spell things right, and today was that day. Congratulations to our Marshall Chamber of Commerce team for pulling off the win at the annual Marshall – Harrison County Literacy Council spelling bee. We made it past 12 other teams, and raised some good money for local literacy efforts. As Bryan Partee said at the beginning of the competition, “when you can read, every book is a children’s book.” I like that. (To answer your question, they’re fire ants – Marshall’s Fire Ant Festival is just a few weeks away).
Speaking of spelling, “plausible” can be a pretty hard word, but a recent opinion by Judge Payne uses it in a sentence, and provides some guidance on when a motion to dismiss a complaint for failure to state a claim because an assertion is not “plausible” should be denied.
The other Sherman holding of interest outside the litigation world recently was Judge Mazzant’s ruling invalidating the Obama administration’s rule expanding overtime protections for white collar workers, discussed below.
Changes in the patent docket locally in the last year and a half or so have meant more trials involving competitors – which means different issues regarding remedies. A “post verdict docket control order” order issued earlier today in such a case provides a look at what sorts of proceedings are normal in such cases after a verdict.