Twice the Fun: Mini-Markman Hearings

I have commented repeatedly about EDTX judges’ use of the “mini-Markman” process to take up a limited set of claim terms that may be dispositive on an expedited basis.  The idea is, of course, that if one or more claim terms will be dispositive of the case, as in Iris Connex, for example, it makes sense to focus on that on an expedited basis.

A recent case provides a good example of how the process works, with the court soliciting input as to allegedly dispositive claim terms and then setting a schedule for briefing and hearing those terms separately and substantially in advance of the regularly scheduled Markman hearing.

Microsoft wins XBox patent trial in Marshall after declining to challenge venue post-TC Heartland

Right before I left for vacation I noted that Microsoft declined to assert a venue challenge after TC Heartland came out and instead proceeded to trial.  That turned out to be a good decision, since two weeks later a Marshall jury in Judge Rodney Gilstrap’s court rendered a complete defense verdict, finding that the asserted claims were not infringed and were invalid.

As I posted a few weeks ago, Microsoft had engaged in an extensive but unsuccessful campaign to get the patents invalidated at the PTO, and the PTO activity actually limited the invalidity defenses that could be asserted at trial.  This didn’t prevent the Marshall jury from finding the claims not infringed and that each was invalid.  (Verdict form is below the fold).

Unless I’ve missed one, that means four plaintiff and four defense verdicts so far this year, with last month’s verdict invalidating one patent but not the other counting as a tie).

Marshall jury finds for defendant in hip implant case

I was talking with a legal news reporter the other day and she seemed startled that local federal courts try more than patent cases.  While I generally don’t post on them because most readers are more interested in patent cases, they try personal injury, antitrust, civil rights, and criminal cases.  Employment, class action, social security, bankruptcy … you name it, they try it.  The other day when there were three jury trials going at the same time, only one was patent – the others were antitrust and discrimination.

A Marshall jury in Judge Gilstrap’s court returned a verdict Friday in favor of the defendant in a hip implant case.  While I haven’t followed the case in detail, it appears to be primarily a product liability case, although it appears other causes of action were also alleged, including deceptive trade practices. Robin Richardson summarizes the trial and its outcome here.

Saint Lawrence Communications v. Motorola – verdict

This is not news – I just realized that the post that should have gone out 3/24 did not (possibly because I was getting ready to start a trial the next business day).  I was just organizing materials on recent verdicts and realized that while I knew there had been seven trials so far this year in patent cases – I could only find six verdicts. A Marshall jury in Judge Rodney Gilstrap’s court returned a verdict in Saint Lawrence’s patent infringement case against Motorola, as analyzed below.

March Patent Status Conferences – Data and Analysis

My report on the March status conferences for Judge Gilstrap’s Marshall, Texarkana and Tyler patent dockets is out and attached for subscribers, with cases, Markman and trial dates and information regarding number of defendants/consolidated cases.

It took a little longer to compile due to the press of, well, practicing law since I was in trial downstairs in Judge Payne’s court the week of the status conferences, as well because I wanted to start adding some additional detail regarding the number of defendants/number of consolidated cases in each case to try to respond to an issue I am seeing in the reported statistics.

One of the problems with comparing EDTX filings and data to other districts is that the practice of consolidating related cases for pretrial in EDTX (and other districts as well) can mask the number of cases being handled or addressed by orders.  As an example, motions that would be filed separately in individual cases absent consolidation are filed only in the lead case (either separately or in most cases consolidated since they raise the same defensive issues – as Judge Gilstrap put it in Iris Connex “[a]fter consolidation most of the other defendants echoed Dell’s argument for dismissal), so the order disposing of them is typically only entered in the lead case, making it appear that there are an abnormally low number of certain motions or orders compared to other districts.

To examples show this clearly. First, in eDekka the court dismissed on 101 grounds and awarded attorneys fees under 285 in 24-27 cases – but because the order was entered only in the lead case it only got counted once. In Iris Connex, the noninfringement order addressing an identical defensive argument resolved eighteen separate cases – but was only entered in the lead case.  On the other hand, some 101 motions are filed pre-consolidation, and the order granting or denying them might be filed in the individual cases – I have seen that lately as well.

My extraordinarily unscientific rule of thumb is now that there seem to be on average about three component cases per consolidated case by the time something interesting happens, so when comparing the number of motions/orders to the number of patent cases filed, I’d multiply the numbers by three.  That gives you an idea of the actual level of activity in the docket, as well as an idea how much duplicative motion practice consolidation for pretrial avoids.  The number is likely higher for early-filed motions like 101s, and probably a little lower for later-filed ones like summary judgments, but the principle is the same – consolidation avoids duplicative motions and orders, but it complicates comparative analysis somewhat.  Facts will do that to you.

I do need to note that this doesn’t apply to motions to transfer, not just because they are typically filed pre-consolidation, but because per Judge Gilstrap’s rule, those motions are required to be filed and considered in the individual cases.  So the 50% dropoff in the filings of motions to transfer that began in 2015 has nothing to do with consolidation – those have always been handled independently of the pretrial consolidation.  They just aren’t filed as much any more.

I hope the attached analysis of the status conferences is useful.

Attorney Prohibited From Filing New Patent Cases for 120 Days as Rule 11 Sanction

I posted several days ago on the show cause order Judge Gilstrap issued with respect to an attorney’s “systematic carelessness” in filings on behalf of the plaintiff in the Ruby Sands litigation.  The full post is available to subscribers here. In an order memorializing the rulings at the hearing, Judge Gilstrap suspended the attorney’s ability to file new cases for 120 days, with the following language:

“Mr. Zimmerman’s repeated acts of negligence in his practice before this Court—as further expounded upon in the Court’s Order to Show Cause and on the record at the hearing – compel the Court to conclude that some targeted action should be taken to prevent further lapses in adequate compliance with the Federal Rules of Civil Procedure, the Local Rules of Practice and the direct instructions of the Court. Such is necessary to support and uphold the integrity of this Court. While Mr. Zimmerman admirably accepted fault at the hearing and made no excuses for his conduct, the fact remains that the instances which precipitated the Court’s Order to Show Cause nonetheless occurred and should be addressed.”

Accordingly, pursuant to Rule 11 of the Federal Rules of Civil Procedure the Court ordered that Mr. Zimmerman be prohibited from filing any new cases within the Eastern District of Texas for 120 days from the date of the hearing on April 26, 2017. The prohibition expires automatically, and does not affect Mr. Zimmerman’s ability to represent clients in cases currently pending.

Second jury (employment discrimination) is back

A Marshall jury in Judge Gilstrap’s temporary courtroom in the historic county courthouse returned a verdict in favor of a Kilgore mail carrier yesterday in a civil rights employment case, determining that she had been fired for reporting that a black supervisor was mistreating the white female employees.  The trial began on Wednesday and finished yesterday.  The jury awarded $250,000 in damages for mental and emotional distress. As expected, that’s two down, with the antitrust case before Judge Schroeder resuming next week.