Supplementing Initial Disclosures & Sequencing Issues at Trial

The issue of when initial disclosures – not patent rule disclosures, but the Rule 26(a)(1)-ish ones which include lists of persons with knowledge – can be supplemented is one that doesn’t come up often.  And a request that issues be sequenced at trial is even rarer.  This order resolving requests for both is of interest to practitioners, since while these requests don’t come up often, they’re of great interest when they do.

Claim construction – part 1 – insufficient algorithm for means-plus-function term

I’m working on a trio of cases today, all of which deal with claim construction.  The first case includes – buried deep in a 117 page order a finding of indefiniteness with respect to a means-plus-function term that it worth analysis.  Of course any opinion of that length will also have a wealth of useful standards that serve as a snapshot of what at least one court understands to be the law as of the end of January, in the year of our Lord 2018 (actually 2011 but once upon a time there was a monk that wasn’t so strong in math, and the rest is, literally, history).

Section 285 Fees Denied Following Section 101 Dismissal

I don’t mean to imply that my holidays are so dull and uneventful, or my interests so limited that a Section 285 order constitutes excitement – but given that my middle doppelganger child Parker’s favorite Christmas presents are a Black Sheep squadron T-shirt and a B-17 bag, it’s certainly possible that’s the case.  (For more information on the Black Sheep, see this post on my personal weblog.  Because it’s the holidays I’ll spare you from why both the T-shirt and the bag are not totally accurate).

In any event, the attached order provides yet another instance where a court found that despite one side having lost, the case wasn’t “exceptional” for Section 285 purposes, and along the way points out arguments that are not helpful, as well as some that might be.

Objections Resolved on Transfer After Non-Imputation of Contacts

A little over a month ago I posted on Judge Payne’s decision to grant a motion to dismiss for improper venue based on his decision not to consider the locations of a corporate subsidiary in the district for purposes of determining venue under Section 1400.  See “A Difficult Standard to Meet” – Imputing Places of Business Among Corporations.”   I thought readers might be interested in Judge Schroeder’s order resolving the objections to that ruling, which has some useful tips on how to (or not) to brief objections to a magistrate judge’s rulings.

(Ed. note: the scene of Dr. Frankenstein’s laboratory refers metaphorically to the concept of transferring something – here one corporation’s locations – from one entity to another.  It does not refer to methods which may or may not be used for the training or usage of law clerks. I express no opinion on its accuracy or metaphorical appropriateness for that use.)

VirnetX Postverdict Motions Analysis – JMOLs, Enhanced Damages & Attorney’s Fees

It’s been a busy few weeks finalizing some other projects, including tests, papers, seminar presentations and the like (and I finally finished that anime-ish P-40 for Parker with accurate paint colors), but I’m finally able to turn more of my attention to some of the very interesting activity in the district in the last few weeks.  And speaking of interest, there are few cases that have generated more than VirnetX v. Apple, which just had its most recent trial’s postverdict motions come out. Most legal news is interested in the bottom line – that the verdict amount of $302 million resulted in a $439 million judgment, but for practitioners the analysis of how it got there is of great interest – I am not the only one out there that enjoys a good JMOL.  So I wanted to work through the motions, but only after a short … well, that’s a lie, it’s not going to be short – procedural history.

Tyler verdict goes both ways in data compression case

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.