This case is a little unusual in that the day before the Markman hearing the Federal Circuit affirmed another district court’s grant of summary judgment of indefiniteness based on construction of a single word. The Court asked for additional briefing, and after considering it, issued the attached opinion.
Let’s say you defeat an adversary in litigation, and you’re looking for assets from which a judgment can be satisfied. Can you get discovery into your former opponent’s disposition of assets? The answer is yes, but not prior to when you made your claim. Why? Because it would not be proportional to the needs of the case. This order makes that finding, but then defines what discovery would be “proportional” under the circumstances.
Reading Markman orders is often like watching soccer while being an American. Only rarely does someone actually score a goal. This Markman is a good example. Dozens of pages of solid analysis, but it’s only at the top of p. 32 and again a few pages later that goals sneak up on you – when the Court noted that these were means plus function terms, and the lack of corresponding structure rendered the three terms indefinite.
This case has an interesting procedural history with respect to venue. Five months after TC Heartland the defendant filed a Section 1404 motion, but didn’t challenge venue as improper. That motion was denied, as was the mandamus petition challenging it. Ten months after the mandamus denial, after a change in lead counsel, the defendant filed a motion asserting improper venue. The order on that motion addresses several issues, including venue over foreign defendants, the geographic jurisdiction of the court, creative uses of the marking statute, and even more creative arguments regarding venue waiver.
Protective orders sometimes have provisions allowing only certain in house persons to see some types of confidential information. When these provisions aren’t followed, bad things can happen, as the allegations in this case show.
I posted the other day that Judge Lynn’s constructions from the recent joint claim construction hearing in SEVEN v. ZTE were out. Now the constructions for the EDTX cases by SEVEN against Google & Samsung by Judge Gilstrap are out as well. This feels just like checking your lottery numbers, doesn’t it – will the constructions match?
The defendant in this case moved to strike a declaration the plaintiff submitted in support of its claim construction positions and asked for expedited briefing. The Court expedited the briefing, and the plaintiff did not respond by the time indicated. Three things happened next.
The defendant in this case asked the Court to dismiss 29 codefendants who were alleged to be its customers, or in the alternative sever or stay the plaintiff’s claims against them. It asserted misjoinder under FRCP 21 and judicial economy.
The first day back in the office after bench/bar is always … difficult.
This morning’s Alka-Seltzer equivalent is this brief order resolving a motion to strike an expert … in a case that settled at mediation two days earlier. The notice of settlement was filed the day after the order.
A “final judgment” under FRCP 58 records the final disposition of a case, and starts the clock running for appellate activity. However in some cases the judgment can get a little more complicated as it can reflect not just the court’s rulings, but also the parties’ agreements to frame the future activity in the case. A recent judgment from the EDTX illustrates this latter case by incorporating “stipulations of noninfringement” based on the Court’s claim construction rulings.