This case is a rematch between two companies which make and sell oilfield equipment used to blow stuff up. Last year a Marshall jury in Judge Payne’s court held the six claims asserted in that case not infringed and invalid as (1) obvious, (2) anticipated and (3) due to the on sale bar. This year just two claims were asserted and the Marshall jury in Judge Payne’s court held them not infringed and invalid as well, but only as obvious this time.
A “final judgment” under FRCP 58 records the final disposition of a case, and starts the clock running for appellate activity. However in some cases the judgment can get a little more complicated as it can reflect not just the court’s rulings, but also the parties’ agreements to frame the future activity in the case. A recent judgment from the EDTX illustrates this latter case by incorporating “stipulations of noninfringement” based on the Court’s claim construction rulings.
Back when I was clerking for him, Judge Hall recommended that I read slip opinions from the Fifth Circuit as they came out. Chambers received the paper slip opinions as they came out – as we didn’t have the Internet and West wasn’t as up to date on opinions – so simple slip opinions were the best way to see what New Orleans thought of the decisions it was receiving from Judge’s colleagues. In a year’s time, he said, I’d have probably seen all of the issues I was likely to see as a clerk, and it was a good immersion in the issues that actually come up in practice. While that’s true of the regional federal circuit caselaw, especially if you’re a law clerk, it is doubly so for state regional courts and courts of last resort if you’re spending most of your time in state court. Which is what I recall the advice actually being – his dad had recommended he read slip opinions as a young lawyer, and he was passing the advice along using the relevant slip opinions for the job I had at the time.
But if your practice is litigation in federal court, and specifically trying cases in a particular subject matter, the best reading material of all – if you can get it – is courts’ rulings on renewed motions for judgment as a matter of law / motions for new trial following a jury’s verdict. The reason why is that the opinions provide a complete cross-section of what the significant issues were in the case, what the arguments were, and what the evidence supporting those arguments were, because every issue that matters will be in there. Why? Because they have to be for appellate purposes. So reading JMOLs tells you what issues you should be alert to, what the strategies on those issues are, and what the specific judge thought of specific arguments. And that’s to say nothing of the treasure trove of legal standards they contain. Summary judgment rulings use a different standard, and only give you one slice of what was at issue in the case, so they’re a poor substitute.
The orders are actually fairly rare, since such a small percentage of cases make it to trial and then make it through postverdict briefing before settlement. And if a court doesn’t try many cases, you won’t see many, so the chances in most courts of reading a detailed JMOL in the subject matter you’re interested in is actually fairly small. That’s why we who work on patent cases locally are somewhat spoiled in the EDTX since we get to see detailed JMOL rulings in patent cases from the judges we try patent cases before – perhaps as many many as several a year per patent-heavy judge in patent cases alone. So we have a pretty good idea from prior, recent rulings which arguments are effective and which are not. That’s why the attached recently-issued order is worth reviewing.
Today’s second case addresses the same issues in a case involving the same plaintiff – but with different facts as to a different defendant. And I wanted to point out some additional analysis involving the Federal Circuit’s recent decision in In re HP.
Today’s posts deal with a couple of instances of the issue of venue practice by foreign corporations in patent cases. Currently this often takes the place of a motion to dismiss for lack of personal jurisdiction under FRCP 12(b)(2) and an alternative motion to transfer under 28 USC Section 1404. Today we have a couple of examples of this.
ANDA cases are not the most common bird locally, so it’s worth taking notice when a 160 page opinion containing 309 findings of fact and 89 conclusions of law rolls out the courthouse door, as happened the other day.
The issue of when venue discovery is proper comes up frequently in patent litigation post TC Heartland, and especially since the Federal Circuit clarified in In re ZTE that the plaintiff, not the defendant, bears the burden of showing that venue is proper. This opinion sets out Judge Gilstrap’s standard on when venue discovery is proper, as well as providing another illustration of when a physical place of business that is regularly established is “of the defendant”.
Today saw one summary judgment ruling and five Dauberts roll out from the chambers downstairs across the street, making things about as busy downstairs this week as they were when this photo of Judge Payne’s future courtroom was taken in 1940-ish. So let’s take a quick look, shall we?
Section 101 rulings are always welcome because they show where judges are on specific fact patterns based on the current state of the appellate caselaw. Normally I’d say that the facts are the variable, not the caselaw, but on this subject the first can vary, and the second can … evolve. This week provides another data point on 101 rulings, with an opinion that drops findings into the no/no, no/yes, yes, and “nope” categories.
One of the more recent examples of the venue order is this one from Judge Payne last month which denies a motion seeking a transfer to Delaware . What makes this order different than the run of the mill orders – what Justice Scalia would have called “mine run” for reasons that still baffle legal scholars – is that it’s based on some forum selection clauses in prior patent license agreements, as well as a judicial economy argument due to prior Delaware cases.