Mondays are awful enough without having to consider the dreary question of “exemplification and court costs”, but on the bright side, I can promise you that on a much worse day than this when you obtain a favorable order limiting the recovery of court costs for ESI production based on your knowledge of this order you’ll experience something you didn’t think was possible. And that is that you can win a ruling and you still don’t feel any better about how the case turned out. The needle won’t move at all. So on that happy note let’s talk about “making copies”, as the Stevarino would say. (If you don’t get that SNL reference, look it up. It’s the best).
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.
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).
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.
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.)
As is only appropriate during a holiday week, last week a Tyler jury in Judge Schroeder’s court returned a verdict in Plaintiff Tinnus Enterprises’ patent infringement suit against multiple entities which were alleged to have infringed its patents on “Battle Balloons.”
So who got wet?
Yesterday a Tyler jury in Judge Robert W. Schroeder III’s court returned a verdict in Network1 v. HP finding that the asserted claims were not infringed, and were invalid.
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.
This recent order by Judge Schroeder granting for the most part a motion to dismiss for lack of patentable subject matter builds on an earlier grant as to different claims from two of the same patents. Accordingly, the procedural history is a little complex, but the discussion rewarding …
A Marshall jury in Judge Robert W. Schroeder III’s court returned a split verdict on infringement yesterday in a case involving an Israeli defense contractor’s patents on broadband technology that has already seen one trip to the Federal Circuit on the TC Heartland improper venue issue.