More Redshirts for 101 Motions

2017 has been a golden year for 101 motions in the Eastern District of Texas, with the reported grant rate – at least for the six month period from last fall through this spring – hovering at 75%, compared to 18% in Delaware.  It’s even triple the 25% grant rate during the same period in the Northern District of Texas, according to the below table from Bilksiblog.com.  Last week saw another negative data point on 101 motions for plaintiffs, as Judge Gilstrap granted a 101 motion on one patent – and on a claim that the PTAB had declined to institute review on – 45 days after the motion was filed, and stayed the case as to several others pending PTAB proceedings.

Jury: “A pox on both your houses”

These JMOL rulings arise out of a trial last year in a competitor case in which the jury found both sides’ patents invalid, and neither side’s patents infringed.  Judge Gilstrap observed, “[a]s Shakespeare’s Mercutio might have said if he been a member of this jury, “A pox upon both your houses.” William Shakespeare, Romeo and Juliette, Act 3, Sc. 1.”

As we will see, it isn’t getting any better for either party.

Steady As She Goes – Court Adopts Jury’s Royalty Rate for Ongoing Royalties

Following a jury verdict awarding damages for past infringement, the court and the parties have to work out what the appropriate form of relief for any future infringement will be, taking into account the availability of an injunction and the appropriate rate for any royalties applied to ongoing activity.  In a recent opinion an EDTX judge addressed the situation where no injunction was sought, no enhanced damages issue was presented, and the sole issue was what royalty rate should be applied to future activity.

Verdict in Marshall patent case

A Marshall jury in Judge Rodney Gilstrap’s court rendered a verdict Friday afternoon in a patent trial involving side scan sonar technology.  (Whether it involved this image of the German aircraft carrier Graf Zeppelin at the bottom of the Baltic Sea I can’t say, but as the plaintiff is a Norwegian company, I like to hope that it did, because as side scan sonar images go, it’s pretty cool). The verdict is interesting because the damages award includes components for a running royalty (as opposed to a lump sum) and lost profits as discussed below.

Use of Confidential Video Clip Not “Fair Use”

Interesting case this week in which Judge Gilstrap granted the plaintiff’s motion for summary judgment of a “fair use” defense in a copyright infringement case in which the defendant alleged various causes of action arising out of an employment termination, and attempted to use a purloined video clip as evidence.  The facts look like something off Dr. Phil.  In fact, they actually were.

Motion to Dismiss Alleging Improper Venue Denied; Motion to Transfer Granted

The issue of whether venue is proper in a patent case post-TC Heartland turns most often on the court’s analysis of whether the defendant has a “regular and established place of business” in the district.  A recent opinion by Judge Gilstrap, applied his four-factor test set forth in Raytheon v. Cray before considering the defendant’s alternative motion to transfer based on convenience.

But the Court’s analysis in this case underscores something I say a lot, which is that it’s shortsighted to view venue statutes in isolation.  The venue statutes enacted by Congress set for a coherent multistep scheme for determining where a case will be tried. The first step involves an initial Congressional decision as to which federal districts a case may be brought in.  The second – what I refer to frequently as a “safety valve” – involves a judicial determination whether a case that is brought in an district of proper venue should nonetheless be transferred to another district for convenience reasons.   Given that motions to transfer are granted at a very nearly exactly 50% rate in EDTX over the last three years, the interaction between these two inquiries bears more attention than it gets – because just because a case is filed here doesn’t mean it will be heard here.