Fed Ex – everywhere you need to be. Even the Eastern District of Texas.

“According to the FedEx Defendants’ advertising, they are “everywhere” you need them to be,” Judge Gilstrap wrote in this opinion.  “However, in their Motion to Dismiss Defendants argue that they are everywhere but this District, at least with respect to venue. The Court disagrees.”

The Court’s opinion in this case is useful on numerous pressing questions.  First, post-Micron what activity (or lack thereof) constitutes waiver of a Fourco improper venue defense; and second, what activity is sufficient to constitute a “regular and established place of business”, as analyzed below, including related questions of burden of proof, imputing contacts, venue discovery, and infringing acts.

It’s purely coincidental that today’s Fed Ex delivery to my office was the ribbon copy of my patent, but it seemed to be worth memorializing in this post about Fed Ex. But yeah, I’m an inventor now.

More Redshirts for 101 Motions

2017 has been a golden year for 101 motions in the Eastern District of Texas, with the reported grant rate – at least for the six month period from last fall through this spring – hovering at 75%, compared to 18% in Delaware.  It’s even triple the 25% grant rate during the same period in the Northern District of Texas, according to the below table from Bilksiblog.com.  Last week saw another negative data point on 101 motions for plaintiffs, as Judge Gilstrap granted a 101 motion on one patent – and on a claim that the PTAB had declined to institute review on – 45 days after the motion was filed, and stayed the case as to several others pending PTAB proceedings.

Jury: “A pox on both your houses”

These JMOL rulings arise out of a trial last year in a competitor case in which the jury found both sides’ patents invalid, and neither side’s patents infringed.  Judge Gilstrap observed, “[a]s Shakespeare’s Mercutio might have said if he been a member of this jury, “A pox upon both your houses.” William Shakespeare, Romeo and Juliette, Act 3, Sc. 1.”

As we will see, it isn’t getting any better for either party.

Steady As She Goes – Court Adopts Jury’s Royalty Rate for Ongoing Royalties

Following a jury verdict awarding damages for past infringement, the court and the parties have to work out what the appropriate form of relief for any future infringement will be, taking into account the availability of an injunction and the appropriate rate for any royalties applied to ongoing activity.  In a recent opinion an EDTX judge addressed the situation where no injunction was sought, no enhanced damages issue was presented, and the sole issue was what royalty rate should be applied to future activity.