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.

Remittitur & Additur: Jury Verdict Set Aside but 285 Motion Denied

There are two directions a patent case can go following a verdict – up or down.  And they get two opportunities at each. First, the verdict can be affirmed or it can be set aside.  Then the bog-standard 285 motion asserting that the case is exceptional determines if it goes up or stays where it is.  (In willful infringement cases there’s a third option, but that’s for a later post). In this case, the Court granted the first motion setting aside the plaintiff’s verdict, but denied the second.

Cioffi v. Google – update

I posted Friday about the jury verdict in favor of the plaintiff in Cioffi v. Google and wanted to add a few more details that may be of interest:

  • the verdict is the first for a plaintiff in the three patent cases tried to date in 2017 – the other two have been for defendants.
  • the plaintiffs were two individual inventors residing in Richardson, Texas (one was the estate of the inventor) in the EDTX.
  • the jury awarded $20 million as a running royalty, not a lump sum; plaintiffs sought $26 million for damages to date, and defendant proposed under a million (as a lump sum I assume) if the jury found infringement.
  • the district court had previously granted summary judgment of noninfringement based on claim construction rulings (including finding a key term indefinite), but those constructions were reversed by the Federal Circuit, and a trial was required based on the corrected claim constructions.

In Cioffi, No. 2015-1194 (11/17/15), the Federal Circuit found that that the district court incorrectly construed “web browser process” as requiring a “direct” access capability and incorrectly construed “critical file” as encompassing “critical user files.” It therefore reversed the district court’s claim constructions to the extent they were inconsistent with its findings and reversed the district court’s finding that the ’103 patent was invalid as indefinite under 35 U.S.C. § 112 ¶ 2.

Because the parties had stipulated to non-infringement based on the district court’s prior constructions, it remanded for further findings pursuant to this opinion, resulting in this trial fifteen months later.

Judge Gilstrap Extends 285 Liability to Nonparties; awards $500,000 against entity behind plaintiff

Last January Judge Gilstrap entered the 285 shot heard round the world when he assessed almost $400,000 in fees against Plaintiff eDekka. Yesterday the shot was even bigger when he assessed $355,000 in fees under 285 against a patent plaintiff and the real party in interest behind that plaintiff, Brian Yates, as well as an additional $152,000 against Mr. Yates individually, as reflected in the attached order, for a total award against that individual of over half a million dollars.  Which, the order was clear, was on top of the amounts Yates had paid 17 of the 18 defendants in the case not to continue with 285 motions. But the important part of the order wasn’t the amount, but the Court’s decision to construe Section 285 as allowing awards against persons who were not even parties to the case in some circumstances.  And key to that finding was Judge Gilstrap’s decision, made sua sponte, to add that real party, which he found had created a series of shell corporations to avoid potential 285 liability if the case “went south” as he put it, as a party to the case so that due process concerns were satisfied. The story of the case is a sorry one, as the order reflects. While