Plausibility and Allegations of Infringement

The Twombly and Iqbal cases set forth the rule that to survive a motion to dismiss, a plaintiff must plead enough to state a claim to relief that is “plausible on its face.” None of this has anything to do with celebrated artist Cy Twombly, but it’s a good excuse to reference his work for those of you that enjoy that sort of thing.

Today’s EDTX Twiqbal guidance comes in the form of an order on a defendant’s renewed motion to dismiss  a patent plaintiff’s claims of willful and induced infringement as well as direct infringement

Motion Trends After TC Heartland: What’s the Relief When Venue is Improper?

Lex Machina’s 2017 patent litigation year in review which is out today, says that “[w]hile the odds of success in E.D. Tex. for a motion to transfer filed prior to TC Heartland were roughly even, afterwards the grant rate increased to 75%” and notes that motions decided almost doubled in the period 180 days after compared to 180 days before (Report at p. 9).  Incidentally, some of these numbers are not new – the grant rate for motions to transfer in EDTX has hovered at 50% for the past three years.  But this puts a number on both the increased numbers of granted motions, and the increased percentage of grants.

Interestingly, it notes, as shown in the above graph, that this pattern was repeated in other districts – the grant rates went from 54% (51% in EDTX) to 74% (75% in EDTX), with the only statistically significant difference being that the number of motions decided in other districts increased even more than they did in EDTX, illustrating a little-reported effect of TC Heartland – it changed the basis for venue for patent cases across the nation – not just in EDTX.

The report doesn’t distinguish between motions to transfer under Section 1404, which was by far the most common motion to transfer under 1404, and motions to dismiss or transfer based on improper venue, which were more common after TC Heartland changed the law on patent venue, but there is one important distinction between the two and that is the relief granted.  While the grant of a motion to transfer is a transfer to a district that is “clearly more convenient”, the relief on a motion to dismiss or transfer for improper venue can be transfer, or it can be simply dismissal.

This is the decision presented in a recent case where an EDTX court considered whether a case where venue was improper should be transferred, or dismissed.

Claim construction – part 2 – how are “emergency” motions and “exceptional” case status related?

You say it’s urgent
Make it fast, make it urgent
Do it quick, do it urgent
Gotta rush, make it urgent
Want it quick
Urgent, urgent, emergency
Urgent, urgent, emergency
Urgent, urgent, emergency
Urgent, urgent, emergency
Urgent, Foreigner (1981).
Ah yes, Foreigner.  Their multiplatinum album 4 was the soundtrack of my senior year in high school (Fast Times at Ridgmont High didn’t come out till late in the year) and provides the perfect entry into today’s “what not to do in a filing”.

 

“Good cause” doubleheader

No, not that kind of good cause.

It’s been a good week for researching the standards for amending infringement contentions, with two opinions addressing the always-of-interest issue of when amendment of infringement contentions is proper, including clarification of the proper standard for “good cause”.  The cases are useful because they present the usual facts and arguments for why leave to amend should or should not be granted, along with the Court’s impression of each.

Damages Expert Report Stricken in Part

This is a breach of contract case arising out of the agreement to settle a patent infringement lawsuit.  The motion at issue seeks to strike the plaintiff’s damages expert from allegedly interpreting the contract, i.e. whether certain conduct constituted use, and thus a breach; and (2) because the expert relied on “cherry-picked screen shots and hearsay.”  The order provides a useful summary of the relevant standards for motions to strike experts, just in case you wanted to steal some really language for your boilerplate files, and a couple of holdings that might be worth referring to in future cases.

Federal Circuit affirms EDTX “stop instruction”

The conditioning of a jury question on an affirmative answer to a prior question is called a “stop instruction” because it explicitly tells the jury to “STOP” if it found “no” to the prior question.

A common example is an instruction to the jury not to answer a question asking if the patent claim is invalid if it just answered that the claim is not infringed.   That isn’t the case in all trials – if it were then a no claims infringed / no claims valid verdict wouldn’t be possible, and most years that is either the most or the second most common single verdict locally.  And it’s the most common defense verdict, certainly – for example in 2017 of the five noninfringement verdicts where invalidity was also submitted, the jury found the claims invalid in four. (It also found the claims invalid in a fifth case where the claims were infringed).

Last week the Federal Circuit addressed this issue in a case from Judge Gilstrap’s court and affirmed the court’s use of – and later enforcement of – the “stop instruction” under the interesting facts of that case.

Exceptional Case Finding Sought After Summary Judgment of Noninfringement

The defendant in this case won a summary judgment of no infringement and asked the court to declare the case exceptional under 35 U.S.C. § 285 and award $700,000 in attorneys’ fees.  The court’s resolution of the motion is yet another data point showing what conduct by a serial filer/bulk filer/ high volume filer is sufficient to trigger liability under Section 285.