A recurring issue in patent cases is when a technical expert’s opinion is consistent with the Court’s claims construction, and simply opines whether infringement exists under the construction, and when it is not. A recent case provided three useful examples where an expert did – but in some cases did not – proffer opinions that were consistent with the claim constructions the jury would have to consider, or was otherwise permissible.
It’s sad around the Hub these days, and I’m sure it’s not because our oldest Grayson has officially left home to start engineering school at Baylor, but because Judge Love has recommended granting the plaintiff’s motion for summary judgment on the defendants’ claims of inequitable conduct and unclean hands in this case, leaving the defendant standing beside their truck in the parking garage trying not to completely lose it as they try to go on as if things will ever be the same again.
Metaphorically speaking, of course.
This is a patent infringement case filed last fall. By February of this year, only one defendant was left. That defendant challenged venue in its answer, and five days after the scheduling conference TC Heartland came out. The remaining defendant filed a motion to dismiss for improper venue shortly afterwards. Judge Love’s opinion granting the motion addresses a the proffered waiver argument, as well as the plaintiff’s claim that the motion should be denied because multidistrict litigation was “imminent.”
One of the most active corners of the venue world in recent weeks has been when an improper venue defense that is waived for failure to assert in a defendant’s initial filings under FRCP can be revived. We recently have seen cases interpreting whether the Supreme Court’s TC Heartland counts as an intervening change in the law, and last week we saw another strategy tried.
I once was talking to a lawyer from another state about why his side kept offering a specific piece of evidence in a patent case after the judge had – repeatedly – excluded it. He explained that where he was from, you keep offering the evidence until the judge threatens to jail you if you don’t stop. Well, we don’t do it that way here – most lawyers this way have this endearing tendency to follow court rulings once an objection is preserved, but here’s an example of a case where one side that didn’t think that was the way to go – and what followed.
A Tyler jury in Judge Rodney Gilstrap’s court rendered a verdict in a patent case Friday afternoon, finding that the defendant directly infringed, and further finding willful infringement, and rejecting the invalidity defenses of lack of written description or enablement. The jury awarded the plaintiff $4.1 million. Just how big of a win this actually was might be made clearer by the post on Judge Love’s opinion excluding a damages expert’s supplementation on the issue of indirect infringement – because I don’t see that indirect infringement was even submitted in the attached verdict.
Just got back from vacation with the herd and in the mad rush to get out didn’t get a post up on this verdict from Tyler in Judge Schroeder’s court which gave both sides something to cheer about.
I’ll be adding other posts during the day (because of course the first day back in the office after vacation is a leisurely one). There’s another verdict and we now have three weeks of filing data post TC Heartland to examine. And no, Collin isn’t possessed, but we are making him sleep with garlic flowers for a few weeks just, you know, in case.
Ever wonder what complete and total happiness looks like? Well, my youngest Parker finally getting to see the completely restored and illuminated starship Enterprise at the Smithsonian last month comes pretty close.
But something else that also comes pretty close is when you file a motion to dismiss a patent case, the plaintiff dismisses the case with prejudice and the Court stops them at the door and asks you if you’d like to get your costs and attorney’s fees back as well.
That was the case in this recent set of decisions by Magistrate Judge Love and Judge Schroeder in this Tyler case which outline some interesting issues with regard to the interplay between motions to dismiss and summary judgment, as well as voluntary dismissals.
Class actions are not the most common form of cat in the Eastern District of Texas, but they are filed from time to time. This case provides an interesting look at the standards applied to motions to certify a class, as well as to the standards applied by district judges reviewing reports and recommendations regarding class certification, as well as a thick block of analysis on the specific requirements of private securities fraud class actions as set forth in Amgen. If you’re addressing similar issues, the two opinions are worth a close study. If you’re not, this is an hour of your life you can keep.
Patent cases often involve production of confidential technical information, which is then reviewed by another party’s experts in preparation for trial. Occasionally, an expert’s work for a competitor causes issues with determining whether the expert can review certain information. That was the case recently in a EDTX case involving electronic products. In that case