Motion to Exclude Experts’ Testimony

With trial only a few weeks away in this case, the Court ruled on Defendant’s corrected motion to exclude portions of the plaintiff’s damages and technical experts, which arguing that their opinions are insufficiently reliable under FRE 702.  The Court’s ruling on the motions sets out the relevant considerations for experts, and explains its rulings in some detail.  They also include, candidly, interesting holdings on what constitutes expert versus lay testimony, and when a defendant’s gross sales numbers might be admissible.

Twombley’d in the Iqbals – Claims Against 11 Defendants Dismissed Without Leave to Replead

I wouldn’t call Professor Arthur Miller’s often-quoted phrase more elegant,  but it is clearly better that the mere “Twiqbal” at describing the effect of his former student Judge Payne’s report and recommendation last week in Bartonfalls v. Turner Broadcasting Systems, Inc., 2:16cv1127, which recommended dismissal of the plaintiff’s claims under three patents against 11 defendants, with prejudice, i.e. no opportunity to replead, using only four paragraphs of analysis.

But the grounds for the dismissal were unique.  In this case

Mini-Markman/Stay Strikes Again

Serially-sued patent defendants often want to know why they can’t just get a case stayed so they can show the Court that it’s obvious that they don’t infringe.  Well, here’s how you do it.

A few months ago I posted on an order granting a motion for an early claim construction on three terms appearing in the asserted claims. “Defendants allege a pattern [by plaintiff] of serially filing groups of cases and then settling those cases before the Court has had a chance to construe the asserted claims,” Judge Payne wrote. (Emphasis added). “The Court finds that determining the meaning of the three terms identified by defendants as early as possible may aid in the just and speedy resolution of this in future cases in which [the plaintiff] asserts the patents.” Accordingly, Judge Payne granted the request for early claim construction and ordered the parties to jointly submit a briefing schedule. The court deferred the issue of whether to stay further discovery and proceedings until it had established a workable early claim construction briefing schedule, but did later stay the case.

The post also explained the history of the “mini Markman” procedure, and cited it as an example of courts finding similar opportunities to achieve efficiencies in addressing repeat issues through special procedures or processes – in much the same way that in my hobby of modelbuilding I find opportunities to achieve efficiencies by using templates or jigs to handle repetitive tasks, using my scratchbuilt 1/200 LUT.  So what you’re wanting to know before we talk about mini-Markmans and stays is, of course, “Michael, how’s that scratchbuilt 1/200 LUT coming along?”  Well, thanks for asking. It’s coming along pretty well – I’ve finished the levels, and am working my way up the tower adding detail and researching the crane on top (did you know it was made by Colby Crane of Seattle – a subsidiary of Lockheed Shipbuilding?).

But back to the mini-Markman.  Judge Payne conducted the hearing yesterday, and the order was out before lunch today.  The order, and my analysis, follow (no more modeling updates, I promise):

Limine Order Prohibiting Reference to “Presumption of Validity”

Erfindergemeinschaft UroPep GbR v. Lilly is closing in on trial, and on Monday visiting Judge William C. Bryson of the Federal Circuit, who as readers know, maintains an active docket of district court patent cases in Marshall and is formally invested as an honorary trial judge in the EDTX with a certificate and everything, recently issued a 13 page order ruling on the parties’ motions in limine.  (Ed. note:  “Erfindergemeinschaft” does not, as you might think, mean “find the mine shaft”, but instead roughly translates to “inventor’s association”, which makes sense since the company was founded by research scientists at Hannover Medical School.  No clue what “Uropep” means in this case involving a drug used to treat erectile dysfunction, but I’ll keep looking). The holding that has the attention is the last paragraph, in which Judge Bryson decided to exclude UroPep from referring to the “presumption of validity”.  He notes that there are cases going both ways on this point, and concludes that that simply means that prohibiting the use of the phrase would not be error.  Having looked both ways, he explains his ruling: “In the Court’s judgment, the use of the phrase “presumption of validity” would add little to the jury’s understanding of the burden of proof on the validity issues. Moreover, the phrase might be confusing to the jury, to the extent that the jury is required to consider both that phrase and the Court’s instructions on the burden of proof. At minimum, the use of the term “presumption” would require a further definitional instruction by the Court, without leading to any greater insight on the jury’s part as to the nature of the burden of proof on the validity issues. Accordingly, the Court will exclude the use of the phrase “presumption of validity” and instead will address the burden of proof in its instructions to the jury.” 237 – Uropep  

Bug, Meet Windshield: Personal Jurisdiction & Twiqbal

Speaking (indirectly) about trial practice, Mark Knopfler that famously observed “some days you’re the windshield; some days you’re the bug.”  What’s a morning catching up on recent cases without watching another argument for (or against) personal jurisdiction and plausibility play out, and see where but for the grace of God, I go … at least until later this afternoon. In this case, the defendant asserted a motion to dismiss for

Another 101 Ruling – Enfish-y or not?

I am going to have to license the graphics from Nintendo’s Wonderful 101 and it’s character Alice before this spring is out because they are in pretty heavy rotation with all the 101 rulings coming out.  This morning’s focuses, as the opinions all do, on whether the claims are more analogous to the cases where patentable subject matter was found, or where it wasn’t, in, for example, Enfish.

In this case,

Motion to Transfer to W.D. Wash. Granted Just in Time for Twin Peaks Return

It’s a great month to go to Washington.  And enjoy a cup of damn fine coffee and a slice of cherry pie, because Twin Peaks is baaaack!

But that may not be how Uniloc sees it.  Of the top five filers of patent cases nationwide last year, only two filed in EDTX.  Hawk filed about seven of its 40-odd cases here, and only Uniloc filed all of its cases here.  But there is now one fewer since Judge Gilstrap granted a motion to transfer its claims against one defendant to Washington.  But as Peakers know, the owls are not what they seem, and similarly, as noted below, there’s an important twist here – this isn’t a transfer based on the traditional 1404 factors at all…

Motions to Transfer Venue and Santa Claus

I posted the other day on a case that was transferred to ND Cal. on the defendant’s motion.  Statistics over the past three years indicate that motions to transfer in the EDTX are granted at a rate of about 50% (2014 – 48.4%; 2015 – 51.85%; 2016 – 48.39%), so here’s one where the motion to transfer to N.D. Cal. was denied, despite the deleterious effects on fictional (and perhaps magical) transport animals, whose existence and convenience is required to be considered when passing on motions to transfer.  But as the Court noted in this case, there is another fiction that is not.

In this case,