Renewed Motion for Judgment as a Matter of Law / Motion for New Trial

Back when I was clerking for him, Judge Hall recommended that I read slip opinions from the Fifth Circuit as they came out. Chambers received the paper slip opinions as they came out – as we didn’t have the Internet and West wasn’t as up to date on opinions – so simple slip opinions were the best way to see what New Orleans thought of the decisions it was receiving from Judge’s colleagues.  In a year’s time, he said, I’d have probably seen all of the issues I was likely to see as a clerk, and it was a good immersion in the issues that actually come up in practice.  While that’s true of the regional federal circuit caselaw, especially if you’re a law clerk, it is doubly so for state regional courts and courts of last resort if you’re spending most of your time in state court.  Which is what I recall the advice actually being – his dad had recommended he read slip opinions as a young lawyer, and he was passing the advice along using the relevant slip opinions for the job I had at the time.

But if your practice is litigation in federal court, and specifically trying cases in a particular subject matter, the best reading material of all – if you can get it – is courts’ rulings on renewed motions for judgment as a matter of law / motions for new trial following a jury’s verdict.  The reason why is that the opinions provide a complete cross-section of what the significant issues were in the case, what the arguments were, and what the evidence supporting those arguments were, because every issue that matters will be in there.  Why?  Because they have to be for appellate purposes.  So reading JMOLs tells you what issues you should be alert to, what the strategies on those issues are, and what the specific judge thought of specific arguments.  And that’s to say nothing of the treasure trove of legal standards they contain.  Summary judgment rulings use a different standard, and only give you one slice of what was at issue in the case, so they’re a poor substitute.

The orders are actually fairly rare, since such a small percentage of cases make it to trial and then make it through postverdict briefing before settlement.  And if a court doesn’t try many cases, you won’t see many, so the chances in most courts of reading a detailed JMOL in the subject matter you’re interested in is actually fairly small.  That’s why we who work on patent cases locally are somewhat spoiled in the EDTX since we get to see detailed JMOL rulings in patent cases from the judges we try patent cases before – perhaps as many many as several a year per patent-heavy judge in patent cases alone.  So we have a pretty good idea from prior, recent rulings which arguments are effective and which are not.  That’s why the attached recently-issued order is worth reviewing.

Foreign Corporations & Venue – Personal Jurisdiction & Section 1404

Today’s posts deal with a couple of instances of the issue of venue practice by foreign corporations in patent cases. Currently this often takes the place of a motion to dismiss for lack of personal jurisdiction under FRCP 12(b)(2) and an alternative motion to transfer under 28 USC Section 1404.  Today we have a couple of examples of this.

When is Venue Discovery Proper? When is a Place of Business “of the Defendant?”

The issue of when venue discovery is proper comes up frequently in patent litigation post TC Heartland, and especially since the Federal Circuit clarified in In re ZTE that the plaintiff, not the defendant, bears the burden of showing that venue is proper.  This opinion sets out Judge Gilstrap’s standard on when venue discovery is proper, as well as providing another illustration of when a physical place of business that is regularly established is “of the defendant”.

Motion to Dismiss For Lack of Patentable Subject Matter Granted in Part

Section 101 rulings are always welcome because they show where judges are on specific fact patterns based on the current state of the appellate caselaw.  Normally I’d say that the facts are the variable, not the caselaw, but on this subject the first can vary, and the second can … evolve.  This week provides another data point on 101 rulings, with an opinion that drops findings into the no/no, no/yes, yes, and “nope” categories.

How Many Judges Does It Take to Conduct a Markman Hearing?

Yesterday saw  a fairly unique proceeding in Judge Gilstrap’s courtroom in Marshall when he and Chief Judge Barbara Lynn (neither pictured at left) conducted a joint claim construction hearing in the case of Seven Networks v. Google & Samsung.   Judge Lynn has a related case in the NDTX, so several months ago the judges coordinated the proceedings to combine the Markman presentations.  While judges in numerous districts – including Judges Lynn and Gilstrap – have coordinated proceedings in related cases in different districts before, especially after the AIA required cases to be filed separately in more situations, conducting a joint hearing is, to my knowledge, a first. It will be interesting to see if the order is joint as well.

Marshall/Tyler patent scheduling conferences – September 11, 2018

If it’s the second Tuesday of an odd numbered month, there’s a good chance there are patent case scheduling conferences going on across the street at the Judge Hall courthouse.  This month was no different, with numerous cases heard for both Judge Gilstrap’s Marshall and Tyler dockets, as set forth below.

Patent jury verdict; indications on submission of Section 101 issues

A Marshall jury in Judge Gilstrap’s court deliberated through 6:15 pm Friday evening in this case, came back for two hours Saturday morning, and finally completed deliberations yesterday morning, returning a verdict in favor of the plaintiff for approximately $10 million.  I wanted to address in this post a couple of issues that aren’t in the major media coverage of the case, but might be of interest to practitioners.