Without exception, each of the panels or talks I have been involved with since TC Heartland came out have agreed that waiver isn’t really worth talking about because as an issue it would go away with time as improper venue became a standard issue for defendants to analyze under the new cases.
This may, therefore, be one of the last cases where a court specifically finds that a proper venue defense was forfeited as a result of delay raising it after the change in the law, although the facts are a little unusual, given that the improper venue defense had already been raised by motion twice, denied twice, and mandamus sought and denied. This, the third motion, was raised seven months after In re Micron was decided, and was denied as well.
This venue opinion is sort of a double-header, since it includes an order from Magistrate Judge Love, followed by a second order overruling objections to a different report & recommendation from Judge Love by Judge Schroeder. So maybe that’s a tripleheader, but the middle one is secret.
In the old days, before people had to figure out how Daubert is pronounced (the family in the litigation pronounces it “Dobbert”, so you can be all French and everything, but you’d be all wrong too – and I say that as a French major), experts simply said what they said, and if the expert’s opinions were that poor, the jury not only disregarded them after the expert had been destroyed on cross, but punished the rest of your case too for presuming to waste their time with such awful testimony. Of course if your expert presenting the termite-ridden opinions was better than the lawyer cross examining them, things got interesting, but we’re not going to talk about George Greene right now.
One of the interesting things about damages testimony, specifically in patent cases, is that since the Federal Circuit has ruled certain economic calculations out as a matter of law for various reasons, the inquiry when determining whether a damages expert can testify as to an opinion at trial is not always simply that the flaws in the opinions go to the weight (with the experienced trial judge knowing that the system tends to be self-correcting because flawed opinions tend to kick harder than they shoot) but sometimes whether the opinion itself is legally impermissible under controlling caselaw.
The attached is a recent opinion out of Tyler where some of these allegations were levelled against a couple of experts, and the Court’s analysis provided hopefully some useful discussion of when flaws in the expert’s opinion fall on weight side of the scale, as opposed to admissibility. The point above – that bad opinions don’t do well at trial – may have been the lesson from this case as well.
One of the points I am making in the papers I am writing and panels I am speaking on this fall re: TC Heartland is that the issue of whether venue is improper as a result of Heartland/Cray is sometimes rendered moot by the resolution of a followup 1404 motion seeking transfer. We saw another example of this in the EDTX just this week.
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.
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.
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