More CAFC Activity on EDTX Defense Trial Wins and Injunction Denials

Yesterday was EDTX day at the CAFC again, with that court ruling on appeals from three of last year’s nine Marshall patent trials.  It affirmed three noninfringement defense wins in two related cases, but reversed Judge Gilstrap’s denial of the sole prevailing plaintiff’s application for an injunction in an appeal arising out of the January 2016 trial that broke the 2015-2016 EDTX defense win streak at six verdicts.

The opinions are attached with a brief explanation of each.

Tyler jury verdict

A Tyler jury in Judge Rodney Gilstrap’s court rendered a verdict in a patent case Friday afternoon, finding that the defendant directly infringed, and further finding willful infringement, and rejecting the invalidity defenses of lack of written description or enablement.  The jury awarded the plaintiff $4.1 million. Just how big of a win this actually was might be made clearer by the post on Judge Love’s opinion excluding a damages expert’s supplementation on the issue of indirect infringement – because I don’t see that indirect infringement was even submitted in the attached verdict.

EDTX Court Establishes Factors for Evaluating Patent Venue Post-TC Heartland

On May 26, four days after the U.S. Supreme Court issued TC Heartland, Judge Rodney Gilstrap issued an order in a number of cases sua sponte calling for supplemental briefing as to the effect of TCH on motions that were either recently denied or still pending in which the defendants asserted the Fourco improper venue defense.  That briefing would conclude on or about June 15.

Although not included with those cases, the defendant in Raytheon v. Cray had asserted Fourco in a motion which was subsequently denied based on VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574 (Fed. Cir. 1990) in 2016, and on June 1, 2017, it reurged the improper venue defense approximately three months before trial.  The Court set a briefing schedule concluding on June 22, and seven days later Judge Gilstrap issued a 27 page opinion that denied the motion.

Although a footnote on the last page of the opinion states that the opinion rests on the Federal Circuit’s holding regarding the “regular and established place of business” in In re Cordis Corp., 769 F.2d 733 (Fed. Cir. 1985), which was its last opinion on the subject before it essentially mooted the language in VE Holdings, the opinion contains an extensive analysis of the issues surrounding this language as a result of the numerous contested motions to dismiss or transfer, and provides guidance and a set of factors to be applied in future cases.

This isn’t unprecedented for common issues – Judge Gilstrap did the same for Section 285 motions earlier this year in Iris Connex, as did Judge Heartfield for motions to transfer a few years back in Mohamed v. Mazda (referred to by some down Beaumont way as the “Magna Carta” of venue jurisprudence for a number of years as it contained state of the art research on every venue issue district courts commonly saw), and Judge Hall on the same subject a few years earlier in 1992 in Box v. Ameritrust – analysis that he revisited in the first Marshall patent case Texas Instruments v. Micron the next year, incidentally).

I wanted to go through the opinion noting the issues it does (and does not) decide, since as the Court notes, they are being raised in numerous cases.

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.