Reloading? There’s a Deadline For That.

This is a product liability case arising out the use of a treestand, shown at right.  For non-East Texans, treestands are used for hunting when you don’t have a conventional stand, an exemplar of which is shown at left.   The deer is clearly Photoshopped in since they never come this close to any deer stand I have ever been associated with.

Deer stands for most hunters involves a gun.  My dad, on the other hand, favored Snickers snack-size bars and cigarettes, and usually left the gun at the house.  (If you stop and think how much work you’ve bought for yourself if you actually kill a deer, forgetting the gun makes a lot of sense).

But try not to picture the danger of a redneck climbing a tree to try to get into the aforementioned treestand with a rifle, and return to comforting thoughts of scheduling orders, which in this case involved, as they are wont to do, a deadline to amend pleadings. In this case, the allegedly injured would-be deer assassin sought to amend his pleadings two months after the deadline.

Post-trial accounting (escrow, royalty rate & interest calculations)

Assume a jury finds infringement – which on recent numbers happens about half the time a patent case goes to trial.  Then assume that the patent is still in effect and the jury was not asked to determine future damages.  In recent cases following the general abolition of injunctive relief in most patent cases, the Federal Circuit has instructed trial courts how this is supposed to work. In a recent decision arising out of a verdict in favor of the patentee in a medical device case an EDTX judge applied this caselaw and set forth how it worked out, including the creation of an escrow account, the appropriate royalty rate for future sales, as well as issues of prejudgment and postjudgment interest.

284/285 Time: Orders on Motions for Enhanced Damages and Attorneys Fees

In an average year about fifteen patent cases are tried in the Eastern District of Texas.  Statistically, about half are complete defense verdicts, and of the remaining ones, only a few have willfulness findings, so it’s a rare case that presents both a Section 284 claim for enhanced damages and a Section 285 claim for exceptional cases status. When we do have them it allows analysis of which conduct supports (or doesn’t) an award, since courts try to ensure that a party isn’t inadvertently penalized twice for the same conduct.  But a recent case out of Beaumont presents both, and provides some useful insight into a trial court’s calculation of enhanced damages, as well as the more frequently presented question of whether a case is “exceptional” for Section 285 purposes. 

Reconsideration of Order Denying Remand Granted

I had an old law school professor tell me once that the number one thing most lawyers wanted to know about federal court was how to get out, and thus if I really wanted to make friends I should focus on removal and remand in my “federal update” papers.  I then had an even older partner once tell me that it’s a fool’s errand to try to persuade a judge that they made a mistake.

Thus a case in which a party not only succeeded in getting out of federal court via a successful remand, but by way of convincing a court that its prior order denying remand was erroneous would be of interest, no? Well, that’s what we have in this case arising out of a fatal Florida auto accident

Beaumont jury awards $20.34 million in medical device case

Last week a Beaumont jury in Chief Judge Ron Clark’s court returned a verdict in favor off the plaintiff in Barry v. Medtronic, which dealt with devices used in scoliosis surgeries.  It found all the asserted claims infringed and willfully so, and that none of the defensive issues had been shown by clear and convincing evidence.  It awarded a total of $20,346,390.