Tuesday I’m testifying before the Texas Legislature which believes that FRCP 12(b) motions are just the cat’s meow for deep-sixing cases early on, and Friday I’m posting a good example of why that’s not necessarily the case. This case arises out of a ANDA application filed by the Defendant to
Ever had that situation where you think you have a settlement, but the other side doesn’t, or vice versa? I mean in the absence of horned and breastplated opera singers, of course. That was the situation presented in this case, where the parties in a patent infringement case appeared to have settled their dispute, but the final settlement agreement fell through when Defendants learned that the Patent Trial and Appeal Board (PTAB) had instituted inter partes review (IPR) of one of the asserted patents. The Court found that
As readers of this blog know, prevailing parties’ opinions of the likelihood of a finding of “exceptional case” after a favorable verdict in a patent infringement case are a little like the children in Garrison Keillor’s Lake Wobegon – they’re all above average. And as readers of my annual column on patent infringement in the Texas Bar Journal’s “Year in Review” issue note, judges have to date uniformly disagreed that a verdict – standing alone – supports a finding of exceptional case.
This issue was presented in a EDTX case recently when
I promised to follow up on the verdict from last week, and here’s the information. It was a competitor case dealing with
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,