This case is a little unusual in that the day before the Markman hearing the Federal Circuit affirmed another district court’s grant of summary judgment of indefiniteness based on construction of a single word. The Court asked for additional briefing, and after considering it, issued the attached opinion.
This is an order resolving a motion to compel on damages issues in a patent case. At issue was whether the Defendants, a parent and a subsidiary, were required to provide financial data on infringing sales made by the parent to entities other than the named sub, and whether Defendants were required to provide financial data for certain additional products. The Court granted one but denied the other, citing the “p” word and providing a useful list of things not to do to preserve a claim for discovery.
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.
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.
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.
One of the unique characteristics of the Eastern District’s 1991 CJRA Plan was the creation of a discovery hotline which allows litigants to get a ruling from a judge in real time on a discovery dispute. This latest ruling arises, as most do, from a dispute over whether a specific set of questions during a deposition was admissible.
I posted the other day that Judge Lynn’s constructions from the recent joint claim construction hearing in SEVEN v. ZTE were out. Now the constructions for the EDTX cases by SEVEN against Google & Samsung by Judge Gilstrap are out as well. This feels just like checking your lottery numbers, doesn’t it – will the constructions match?