I wouldn’t call Professor Arthur Miller’s often-quoted phrase more elegant, but it is clearly better that the mere “Twiqbal” at describing the effect of his former student Judge Payne’s report and recommendation last week in Bartonfalls v. Turner Broadcasting Systems, Inc., 2:16cv1127, which recommended dismissal of the plaintiff’s claims under three patents against 11 defendants, with prejudice, i.e. no opportunity to replead, using only four paragraphs of analysis.
But the grounds for the dismissal were unique. In this case
Serially-sued patent defendants often want to know why they can’t just get a case stayed so they can show the Court that it’s obvious that they don’t infringe. Well, here’s how you do it.
A few months ago I posted on an order granting a motion for an early claim construction on three terms appearing in the asserted claims. “Defendants allege a pattern [by plaintiff] of serially filing groups of cases and then settling those cases before the Court has had a chance to construe the asserted claims,” Judge Payne wrote. (Emphasis added). “The Court finds that determining the meaning of the three terms identified by defendants as early as possible may aid in the just and speedy resolution of this in future cases in which [the plaintiff] asserts the patents.” Accordingly, Judge Payne granted the request for early claim construction and ordered the parties to jointly submit a briefing schedule. The court deferred the issue of whether to stay further discovery and proceedings until it had established a workable early claim construction briefing schedule, but did later stay the case.
The post also explained the history of the “mini Markman” procedure, and cited it as an example of courts finding similar opportunities to achieve efficiencies in addressing repeat issues through special procedures or processes – in much the same way that in my hobby of modelbuilding I find opportunities to achieve efficiencies by using templates or jigs to handle repetitive tasks, using my scratchbuilt 1/200 LUT. So what you’re wanting to know before we talk about mini-Markmans and stays is, of course, “Michael, how’s that scratchbuilt 1/200 LUT coming along?” Well, thanks for asking. It’s coming along pretty well – I’ve finished the levels, and am working my way up the tower adding detail and researching the crane on top (did you know it was made by Colby Crane of Seattle – a subsidiary of Lockheed Shipbuilding?).
But back to the mini-Markman. Judge Payne conducted the hearing yesterday, and the order was out before lunch today. The order, and my analysis, follow (no more modeling updates, I promise):
Speaking (indirectly) about trial practice, Mark Knopfler that famously observed “some days you’re the windshield; some days you’re the bug.” What’s a morning catching up on recent cases without watching another argument for (or against) personal jurisdiction and plausibility play out, and see where but for the grace of God, I go … at least until later this afternoon. In this case, the defendant asserted a motion to dismiss for
I am going to have to license the graphics from Nintendo’s Wonderful 101 and it’s character Alice before this spring is out because they are in pretty heavy rotation with all the 101 rulings coming out. This morning’s focuses, as the opinions all do, on whether the claims are more analogous to the cases where patentable subject matter was found, or where it wasn’t, in, for example, Enfish.
In this case,
Ever wanted to trade in that old corporate rep for a new one – a “changeling” as it were? That was the issue presented in a recent case that was closing in on its pretrial conference in Marshall.
In that case,
I posted the other day on a case that was transferred to ND Cal. on the defendant’s motion. Statistics over the past three years indicate that motions to transfer in the EDTX are granted at a rate of about 50% (2014 – 48.4%; 2015 – 51.85%; 2016 – 48.39%), so here’s one where the motion to transfer to N.D. Cal. was denied, despite the deleterious effects on fictional (and perhaps magical) transport animals, whose existence and convenience is required to be considered when passing on motions to transfer. But as the Court noted in this case, there is another fiction that is not.
In this case,
It’s been a busy spring for 101 grants over at the courthouse. This morning I saw another order, this time granting motions by six defendants to dismiss 974 claims in ten patents under 101 in a case involving patents dealing with financial services, but with a few twists we haven’t seen in other recent orders, including the effect of prior Markman rulings and 101 rulings involving the same patents. Both are addressed in my analysis below. The case involves
You know that feeling when you open the closet door and everything falls out? It was sort of like that when I started looking at recent Twiqbal opinions today. I got the most significant one out this morning, but have been buried in the rest trying to decide which are worth posting on. But this is one. In this case,
Nope, the closet isn’t cleaned out yet. In this case, defendants in four of five consolidated cases filed Twiqbal motions, and Judge Payne addressed all four in a single order, Hellfighters-style. Actually, that’s not quite accurate – defendants’ principal argument was a lack of standing, but all also asserted failure to state a plausible claim. With respect to the first,
No, this isn’t a book review. I just couldn’t pass up the cover of this … interesting publication. On December 1, 2015, the authority governing the pleading standard for certain types of patent infringement claims changed. Prior to that date Federal Rule of Civil Procedure 84 and Form 18 of the Appendix of Forms controlled pleadings for direct patent infringement claims. But in cases filed after December 1, 2015, as well as “insofar as just and practicable, all proceedings then pending,” the Iqbal/Twombly standard governs patent infringement pleadings. In the case I am discussing, the complaint was filed several weeks after the change, so there was no dispute that Twiqbal applied. The case is a patent one, and as is often the case, a Twiqbal motion was filed, but this opinion addresses the still relatively new issue of how Twiqbal applies to pleadings of direct infringement, as well as several claims dealing with allegations of indirect and willful infringement, as well as other issues. It also presents practitioners with a match set (attached below the analysis) of Judge Payne’s report and recommendations on the issue, and Judge Gilstrap’s subsequent order adopting the report and overruling the objections. The case is trebly important because it addresses both substantive and tactical considerations, indicating what practices regarding Twiqbal motions might be more better received than others.