Substituting Witnesses

Well, this is an interesting fact situation.  A party’s expert experienced a medical event and it sought to sub in a replacement for trial.   At the hearing on the motion the Court determined that it needed more information on whether a replacement was needed.  Its solution was set forth in a sua sponte order.

ESI Order Developments

One of the things I like about this weblog is that it gives me a way to share interesting developments in how common procedures are applied in specific fact situations in civil litigation locally – with the almost half dozen people who care. An example of that came up recently in a case where parties in a follow-on group of cases disputed whether they should have to use the bespoke metadata provisions in an ESI order negotiated between the plaintiff and an earlier defendant. 

Patent Case Stayed Pending Mandamus Decision – But Not Pending IPRs

Earlier today Judge Gilstrap granted a motion staying a consolidated patent case pending the resolution by the Federal Circuit of a mandamus petition that has been filed in another case.  The Court declined to stay the case pending resolution of two IPR proceedings. The ruling is worth studying because of what the motion sought, as discussed below.

Concurrent Bi-District Markman Hearings Ordered

I have posted previously on some interesting orders coordinating related patent infringement cases between EDTX, WDTX, NDTX and NDCal.  The opportunity for cross-district cooperation was presented to courts after Congress required that cases involving different products or processes be filed separately in the AIA in 2011, and was significantly enhanced after TC Heartland eliminated personal jurisdiction as a basis for venue in patent cases.

In furtherance of the twin goals of judicial efficiency and reducing the risk of inconsistent or conflicting constructions, earlier this week EDTX Chief Judge Rodney Gilstrap ordered a concurrent Markman hearing in a case which has a parallel case pending before NDTX Chief Judge Barbara Lynn, meaning that he and Judge Lynn will conduct the hearing for both cases together later this summer.  They have chosen to conduct the hearing in the courthouse in Marshall.

For more details, see below.

Judge Gilstrap Named 2018 Baylor Lawyer of the Year

U.S. District Judge Rodney Gilstrap had an unusual ceremony in his courtroom Friday.  Called to an unscheduled hearing about an unidentified confidential matter, he was asked to “unseal the courtroom,” allowing the bailiff to open the doors to the public, which included his staff, courthouse employees and colleagues. The judge was then told that there was a “jury of his peers” waiting in the jury room, and when he invited the jury to enter, his wife led a crew of Baylor law school alumni and Gilstrap’s current and former colleagues on the EDTX bench, accompanied by the Baylor fight song. (No, seriously).  They included former EDTX judges David Folsom and T. John Ward; Clerk of Court David O’Toole; Texarkana EDTX judge Trey Schroeder; Marshall’s Magistrate Judge Roy Payne, and Lufkin trial lawyer George Chandler, as well as Baylor Law’s dean Brad Toben by satellite.


Baylor Law School now
Baylor Law School back when we had to walk uphill both ways in the snow to attend classes.

The reason that Judge Ward and George Chandler were in the room was for the announcement was that Judge Gilstrap would join them as a recipient of the Baylor “Lawyer of the Year” award.  The award began in 1961, making Judge Gilstrap the 58th Baylor Lawyer of the Year.” Other past recipients of the award from the EDTX include the late former Marshall EDTX Judge Sam B. Hall, Jr. in 1992, and former Tyler EDTX Judge Leonard Davis more recently.  For trivia buffs, it also means that the late Marshall lawyer Ernest Smith (no relation) now has two former partners, Judge Hall and Judge Gilstrap, who have been named Baylor Lawyer of the Year.

The recipient of the award is selected annually by the Baylor Law Alumni Association executive committee. The award is the highest honor given by the association, and is given to an outstanding alumnus who has brought honor and distinction to the Law School and to the legal profession. Criteria for recipients include legal accomplishment, involvement and service in the profession and active interest in Baylor Law.

Dean Toben told the assembled group that he likes to characterize it as a Baylor lawyer who is bright, a model of integrity, and one who illustrates through their life and service a sense of compassion, empathy, and an ability to reach out to others. He said it’s also someone who has a servant-led life that is influenced by faith.  He also noted that Judge Gilstrap’s colleagues have established a scholarship at Baylor Law School to benefit deserving students, in perpetuity.

Congratulations to Judge Gilstrap, and we’re all looking forward to the traditional dinner later this spring commemorating the honoree.

Adjustacam Fees Set at $564,865.85

The procedural history of this case is a long one.  Essentially, Adjustacam originally sued 58 defendants in 2010.  It dismissed most of its claims prior to Markman, and then in the fall of 2012 dismissed its claims against the last defendant, Newegg.  Newegg sought fees under Section 285 and Judge Davis denied the motion. Octane Fitness then came out while that decision was on appeal, changing the standard for determinations of “exceptional case” under Section 285, and Newegg sought fees again.  The trial court, now Judge Gilstrap, denied the renewed motion.  The Federal Circuit reversed and found the case “exceptional”, and Judge Gilstrap ordered briefing on the amounts of fees.  This afternoon he issued the attached order setting the fees.

Celebrating Lexington Day With an Enhancement/Exceptional Opinion

Well, it’s certainly both an enhanced and exceptional day for me, as Paul Allen’s team located the wreck of the carrier Lexington in the Coral Sea, 76 years after it sank, along with – to date – 11 of the 35 aircraft it had on board when it went down.  

Yes, I’m the crazy uncle that makes handcrafted wood Lexington toys for his cousins’ kids – as well as the occasional plastic model of one – but you know, every family has one of those, doesn’t it?  So today, the Lexington comes with me to the office to celebrate.

Also celebrating this morning is plaintiff Eidos Display, which, following a lengthy campaign, won a 2x enhancement of its recent $4.1 million jury verdict against competitor Chi Mei Innolux. Like the Battle of the Coral Sea both sides won something, with Innolux defeating Eidos’ request for attorneys fees under Section 285.  So let’s analyze what happened, note some significant comments in the opinion, and say hello to LBJ, Mr. Sam, and some East Texas lawyer sayings along the way.

What part of “The Court ORDERS additional briefing on … the propriety or impropriety of venue in this District and the propriety or impropriety of venue in any requested transferee districts” did you not understand?

I recently posted on a post-Micron decision finding no waiver and deciding to dismiss as opposed to transfer patent cases brought against three defendants.  There’s an interesting followup to that decision now, in which the plaintiff asked the Court to “modify” the order to transfer instead of dismiss.

The Equitable Defense of Patent Misuse & Limitation of Damages Based on FRAND Principles

Equitable defenses typically don’t get a lot of attention in patent cases.  In this case the parties declined to present any evidence on the equitable defenses orally, instead submitting on the papers, but of course submitting additional briefing postverdict as well.  Accordingly, the defendant’s equitable defenses of patent misuse and limitation of damages based on FRAND principles were resolved postverdict in the attached findings of fact and conclusions of law.