Willful Infringement & Summary Judgment

Two of patent litigants’ favorite topics come together in this afternoon’s essay by Judge Payne ruling on a defendant’s motion for partial summary judgment of willful infringement.  (Ever wonder why “infringement” has an “e” and “judgment” doesn’t?  I have, but just the once). So crack open a peanut butter cup, and let’s see what the Court had to say.

“Stream of Commerce” & “Regular and Established Place of Business”

The Supreme Court’s recent opinion in TC Heartland has had the effect of shifting the focus of venue briefing in many cases from Section 1404 motions to transfer venue to Rule 12(b)(3) motions to dismiss for improper venue, often asserting that the defendant does not have a “regular and established business” in the district, as well as Section 1404 motions seeking a transfer based on convenience.

Because of the similarity of the former improper venue analysis to a motion to dismiss for lack of personal jurisdiction, those motions were sometimes brought together, even though to be successful, the latter had to show the lack of sufficient contacts with the entire state of Texas, not just the district.

This case presents both flavors of motions to dismiss in the case of automobile manufacturers and distributors, and required rebriefing of the convenience issues after the Court’s ruling on the first two motions.

VirnetX – JMOL, MNT, enhanced damages & attorneys fees rulings

A trip to the West Coast for a mediation kept me from posting this earlier, but Judge Schroeder’s unredacted opinion in the VirnetX case resolving the postverdict motions is now out, and provides the latest analysis on many issues of interest to practitioners, including most notably enhanced damages, as none were awarded.

VirnetX Litigation Slouches Towards Another Appeal

Apologies to Yeats, but it is referred to as the “most thoroughly pillaged piece of literature in English literature”, so piling on is permitted. Judge Schroeder entered another final judgment in the VirnetX case last week after denying defendant Apple’s most recent JMOL and motion for new trial. The order itself is filed under seal for the moment, but will be unsealed, less any needed redactions from the parties, on September 10. VirnetX – final judgment VirnetX – sealing order

Emergency motion practice

An issue that sometimes comes up in the at times frenetic world of complex civil litigation is when it is appropriate to caption a motion as “emergency”.  A complete discussion of the topic is beyond the scope of this post, but there is a data point that’s worth mentioning.

The Irises are Blooming in California

Interesting order out of the Northern District of California Monday. The district court granted summary judgment, and then granted defendant’s motion to join plaintiff’s founder/inventor as a necessary party and pursue attorney fees against him under 35 U.S.C. § 285. Noting that the plaintiff did not appear to have assets from which an award could be paid, the Court found that “[g]iven [the founder’s] controlling shareholder power and his status as the only person from [plaintiff] who is involved in this litigation, the Court finds that [his] activities may potentially subject him to liability for attorneys’ fees and that he should be joined in this action.” The cites to Iris Connex begin on page 14, and build to a climax around page 20.  Unlike that case, the only issue presented here was whether the third party should be joined, and not whether he was liable, if so, whether he should be held jointly and severally liable with the plaintiff, and what the amount of fees should be.  Those issues are yet to be briefed. cand-5-15-cv-01238-442

Mandamus Denied on Venue Waiver Opinion

I posted a few weeks ago on an EDTX case finding an objection to improper venue waived in a fairly unique set of circumstances.  Yesterday the Federal Circuit denied a petition for a writ of mandamus as to the district court’s ruling affirming the magistrate judge’s decision.  In its order, the Court found that the “exacting standard” for mandamus had not been met, and explained why.