Proportionality Finally Gets Used in a Discovery Order

Let’s say you defeat an adversary in litigation, and you’re looking for assets from which a judgment can be satisfied.  Can you get discovery into your former opponent’s disposition of assets?  The answer is yes, but not prior to when you made your claim.  Why? Because it would not be proportional to the needs of the case. This order makes that finding, but then defines what discovery would be “proportional” under the circumstances.

Breach of Settlement Agreement

I’ve seen a couple of cases recently out of the EDTX dealing with breaches of settlement agreements.  In some cases the complaining plaintiff (who in this case was the original plaintiff) seeks injunctive relief, but in this copyright case it is just seeking an order in a default situation that it is entitled to the unpaid payments due under the original agreement, as well as fees, costs, and since the infringing activity has resumed, a finding of liability and award of statutory damages.  In essence, the hole for the copyright defendant just got twice as deep.  (Pro tip: don’t default).

Admittedly this is a default situation, but it’s a nice template for what to seek when you have to go once more unto the breach.

 

Motion to Limit Pre-Suit Damages For Failure to Mark

Defendants in patent cases sometimes allege that a plaintiff has failed to comply with the marking requirement of 35 U.S.C. § 287, and thus that pre-suit damages are limited.  As here, that motion often takes the form of a motion for partial summary judgment.  The Court’s order in this case provides a useful exposition on the applicable standards for patent marking, and applies those standards to the facts of this rather interesting case to determine whether the pleadings were sufficient for the plaintiff to seek presuit damages in the first place, and if so, whether the defendant met its burden to allege a limitation, and if so (also) whether the plaintiff had satisfied its burden of compliance.

Wait – I went into the ditch here.  On a motion for summary judgment, the final question is not whether the plaintiff had shown compliance, but actually just whether there is a factual dispute as to whether unmarked patented products were sold.  There, I feel better.

Means Plus Function Terms Indefinite for Lack of Corresponding Structure

Reading Markman orders is often like watching soccer while being an American.  Only rarely does someone actually score a goal. This Markman is a good example.  Dozens of pages of solid analysis, but it’s only at the top of p. 32 and again a few pages later  that goals sneak up on you – when the Court noted that these were means plus function terms, and the lack of corresponding structure rendered the three terms indefinite. 

Improper Venue Motion Denied, But Points for Creativity (Deducted, But Still)

This case has an interesting procedural history with respect to venue.  Five months after TC Heartland the defendant filed a Section 1404 motion, but didn’t challenge venue as improper.  That motion was denied, as was the mandamus petition challenging it.  Ten months after the mandamus denial, after a change in lead counsel, the defendant filed a motion asserting improper venue.  The order on that motion addresses several issues, including venue over foreign defendants, the geographic jurisdiction of the court, creative uses of the marking statute, and even more creative arguments regarding venue waiver.

Hotline calls

One of the unique characteristics of the Eastern District’s 1991 CJRA Plan was the creation of a discovery hotline which allows litigants to get a ruling from a judge in real time on a discovery dispute.  This latest ruling arises, as most do, from a dispute over whether a specific set of questions during a deposition was admissible.

EDTX claim constructions in SEVEN v. Google out; comparison to NDTX constructions

I posted the other day that Judge Lynn’s constructions from the recent joint claim construction hearing in SEVEN v. ZTE were out.  Now the constructions for the EDTX cases by SEVEN against Google & Samsung by Judge Gilstrap are out as well.  This feels just like checking your lottery numbers, doesn’t it – will the constructions match?