Orders granting even part (sometimes especially ones granting only part) of motions to strike expert witnesses are always of interest to practitioners, since they provide guidance on which opinions are in and which are out.
This motion sought to exclude certain portions of a patent defendant’s infringement expert, and was granted, but only in part.
After a four-day trial in December, a Marshall jury in Judge Roy Payne’s court found that Defendant TCL willfully infringed claims 1 and 5 of United States Patent No. 7,149,510 asserted by Plaintiff Ericsson by selling phones and devices equipped with the Google Android operating system, and the jury awarded $75 million as a lump sum royalty.
The court previously ordered a new trial on damages after finding Ericsson’s damages theory unreliable, but last Thursday the Court reconsidered that order, reinstated the jury’s verdict in full, and resolved all other remaining disputes, i.e. TCL’s motions for judgment as a matter of law, and Ericsson’s motions for enhanced damages and attorney’s fees.
A couple of Daubert rulings today put me in mind of Ghostbusters. Remember the Gatekeeper and the Keymaster? Well, the outcome of these “gatekeeper” motions may or may not have been as catastrophic to the parties in these cases – it’s usually difficult to tell with the part in/ part out rulings – but as usual they do provide some insight into why some opinions are ruled in or out, and some useful guidance on which challenges are worth making and which aren’t..
With apologies to Dickens, that’s what a motion for exceptional case status under 35 USC 285 is, and we have another interesting EDTX decision on which facts will get you more soup. (Or a beating).
Motions to strike infringement contentions and motions to compel discovery make up a significant part of pretrial motion practice in patent cases. This recent order following a hearing provides guidance on when such motions are denied.
Sometimes the reasons for the denial of a summary judgment motion are as instructive as the reasons for a grant. They can educate the reader on what sorts of grounds just aren’t going to work, and why. This was the case with a recent decision by Judge Payne in Marshall.
I have been doing the one-armed paper hanger thing in recent weeks getting ready for some upcoming trials and hearings (including last Friday in Texarkana where cocounsel Brent Carpenter and I celebrated enjoying the hell out of practicing law by taking a selfie outside the courthouse) and have just been able to turn to some of the more interesting recent orders.
A couple of weeks ago I posted that Judge Payne had decided to vacate the damages award in the Ericsson v. TCL case. The opinion is now out and explains the basis for the Court’s decision – as well as noting that the infringement JMOLs will be denied.
Several weeks ago I posted on Judge Payne’s order on inadequate infringement contentions, which culminated in an order that the plaintiff pay Defendants’ reasonable expenses, including attorneys’ fees, incurred as a result of several motions seeking to compel it to comply with the Local Patent Rules governing infringement contentions. The parties were unable to reach agreement on the amount of costs, and earlier this week Judge Payne issued his order resolving the issue.
The Twombly and Iqbal cases set forth the rule that to survive a motion to dismiss, a plaintiff must plead enough to state a claim to relief that is “plausible on its face.” None of this has anything to do with celebrated artist Cy Twombly, but it’s a good excuse to reference his work for those of you that enjoy that sort of thing.
Today’s EDTX Twiqbal guidance comes in the form of an order on a defendant’s renewed motion to dismiss a patent plaintiff’s claims of willful and induced infringement as well as direct infringement
Again, buried in a 105 page Markman opinion is a useful analysis of and ruling on a relatively rarely presented issue – whether an expert’s opinions have been sufficiently disclosed under the patent rules to permit their use.