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.

Clash of the 101 Motions: Motion to Dismiss Claims Versus Motion for Summary Judgment as to 101 Defense

Although most 101 defenses are raised via motions to dismiss under 12(b)(6), a few are brought under 12(c), and more than a few are either filed in or converted to the context of summary judgment.  But this case raises an interesting twist with the defendant seeking dismissal on 12(b)(6) grounds and the plaintiff seeking summary judgment that the 101 defense is without merit.  So let’s see how that worked out for them.

Show cause order re: attorney’s “systematic carelessness”

Yesterday I posted on a recent decision by Judge Gilstrap finding “exceptional case” status.  In that opinion, the Court addressed the effect of mistakes by lawyers, parties or principals.  Earlier this morning, Judge Gilstrap issued a “show cause” order as a result of what he said is “most charitably” described as an attorney’s “systematic carelessness” requiring the attorney to appear to show cause why his conduct does not violate Rule 11(b), and why appropriate sanctions under that rule should not be imposed. As set forth below, the party is a familiar one, although in a different context.

EDTX Creates Nonparty Liability in Exceptional Cases; CAFC Not So Much

I was working on an update on the Iris Connex case (you remember – noninfringement dismissal after expedited claim construction, $507,000 in sanctions against plaintiff and nonparty) when I saw Dennis Crouch’s summary this morning of the Federal Circuit’s decision in Asetek Danmark v. CMI USA (“Cooler Master”) (Fed. Cir. 2017) focused on the issue on enjoining a nonparty.

In light of that case, I realized that the time might be right for a detailed post on the issue of the new EDTX-created mechanism for nonparty liability, which I’ll refer to as a the “Iris Connex” test.

The significance of this new test appears to be starting to seep in – I just read an analysis of it in an article by some TBL partners that correctly noted it as evidence that “courts on the front lines of patent litigation, and particularly in the Eastern District of Texas, are more adept at addressing potential systemic abuses than reform-minded politicians.” 23 No. 25 Westlaw Journal Intellectual Property 1.  The specific proposals they were addressing were those in recent patent reform bills that sought to increase transparency in NPE cases to address exactly the abuses that the Court found in this case, but which ran into trouble trying to craft specific measures that didn’t cause other problems.  When faced with a “shell corporation” scheme to elude liability under Section 285, the article wrote that “the Eastern District of Texas created a solution – and set an example for other courts and patent litigants to follow.”  The article opines, and I think correctly so, that this may be another example of the courts developing an effective solution to a problems using existing tools before Congress legislates one.

But first, we need some background facts on the Iris Connex case.  After all, it is the one Judge Gilstrap described as “the clearest example of an exceptional case to yet come before the undersigned. Simply put, if this case is not an exceptional case, then there are none.”

The next 4,296 words are my attempt to summarize the case, its resolution, and its significance.  Pour yourself a cup of coffee, pull up a seat, and let’s get exceptional.

Motion to Transfer to W.D. Wash. Granted Just in Time for Twin Peaks Return

It’s a great month to go to Washington.  And enjoy a cup of damn fine coffee and a slice of cherry pie, because Twin Peaks is baaaack!

But that may not be how Uniloc sees it.  Of the top five filers of patent cases nationwide last year, only two filed in EDTX.  Hawk filed about seven of its 40-odd cases here, and only Uniloc filed all of its cases here.  But there is now one fewer since Judge Gilstrap granted a motion to transfer its claims against one defendant to Washington.  But as Peakers know, the owls are not what they seem, and similarly, as noted below, there’s an important twist here – this isn’t a transfer based on the traditional 1404 factors at all…

Whirlpool verdict – willfully infringed, not invalid – $7.6 million

As expected, the Marshall jury in Judge Gilstrap’s court rendered a verdict in the Whirlpool case this afternoon.  It found all claims willfully infringed, none of the claims shown to be invalid by clear and convincing evidence, and set damages through today at $7.6 million. Assuming my notes are correct, that brings patent verdicts for the year even at two each, slight ahead of the district’s win rate of 43.9% over the past three years.  Assuming it goes, next’s week’s trial will be the tiebreaker for the year so far.

EDTX Guidance on Motions to Dismiss Under Twiqbal After Abrogation of Form 18

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.