2017 3Q Patent Filings Analysis: About Those Delaware Filings …

There’s a scene towards the end of 2010 where Dr. Floyd (Roy Scheider) looks out the window of the Leonov and sees that the colors of the planet Jupiter are … fading.  He doesn’t know why, but he knows it’s really, really significant.

I was reminded of the look on Roy Scheider’s face last night when I began looking at two reports that are now out analyzing the patent case filings for the third quarter of 2017.

You won’t believe who edged out Delaware in new patent filings the last three weeks of September.  And I think I know why.

Time is what prevents everything from happening at once. Lately it doesn’t seem to be working

My calendar knew that I am speaking at three events in the upcoming week on the effect of TC Heartland, but somehow it didn’t see fit to tell me.  So let me flag a couple in case you’re in the neighborhood, as well as mention a fourth presentation at the upcoming ILT IP conference in Plano in November:

Midwest IP Institute – Friday, Sept. 29 – 1:15 pm – I am on a panel at the Midwest IP Institute in Minneapolis.  As our panel follows CAFC Judge Jimmie Reyna, who was on the panel in In re Cray, we might have more insights than we’re currently aware of.

If you haven’t been to this event, the Minnesota Bar’s CLE conference facilities in the City Center Mall are the best I’ve ever seen.  I spoke there a few years back and am really looking forward to returning – with I could be there for both days, but there are claims that must be construed …

EDTX Bench/Bar – Thursday, October 5 – I’ve already posted on this one, but we have a great panel on the effect of TCH (and now In re Cray) to kick off the bench bar Thursday morning.  I’ll be moderating a panel consisting of

  • Judge Leonard Davis, Fish Richardson;
  • Dean Brad Toben, Baylor Law School;
  • Ted Stevenson, McKool Smith;
  • Wesley Hill, Ward, Smith & Hill, PLLC; and
  • Thomas J. Meloro, Willkie, Farr & Gallagher, LLP

We are hard at work making sure we have all the best analysis for attendees.

I’m also presenting on the same topic at the Institute for Law & Technology’s 55th Annual Conference on Intellectual Property Law in Plano, which I am co-chairing with Brian Gaffney of AT&T this year.  The conference will be November 13-14, and I’ll post more when – well, when next week is over.

Walking Back Cordis: Federal Circuit Grants Petition for Writ of Mandamus in Raytheon v. Cray

This morning the Federal Circuit granted the petition for mandamus in the Cray v. Raytheon case.  First of all, congratulations to my cocounsel at Fenwick & West for obtaining that great result for our client Cray.

I have a brief analysis of the opinion and a copy for readers below, with some analysis on the decision’s “physical” analysis that may be of interest.

Expert’s Opinions v. Court’s Claims Construction

A recurring issue in patent cases is when a technical expert’s opinion is consistent with the Court’s claims construction, and simply opines whether infringement exists under the construction, and when it is not.  A recent case provided three useful examples where an expert did – but in some cases did not – proffer opinions that were consistent with the claim constructions the jury would have to consider, or was otherwise permissible.

More EDTX Data Points on Enhanced Damages, Exceptional Case Fee Awards and Ongoing Royalties

Several recent opinions out of the EDTX provide litigants with more data points on enhanced damages – when are they appropriate and when are they appropriately set aside – on how future royalties are calculated, and and on when Section 285 awards of attorneys fees in “exceptional cases” are appropriate.  They also provide a helpful analysis of which non-taxable fees and expenses are not recoverable under Section 285.

Plausible. P-L-A-U-S-I-B-L-E. Plausible.

One day a year I have to spell things right, and today was that day.  Congratulations to our Marshall Chamber of Commerce team for pulling off the win at the annual Marshall – Harrison County Literacy Council spelling bee.  We made it past 12 other teams, and raised some good money for local literacy efforts.   As Bryan Partee said at the beginning of the competition, “when you can read, every book is a children’s book.”  I like that.  (To answer your question, they’re fire ants – Marshall’s Fire Ant Festival is just a few weeks away).

Speaking of spelling, “plausible” can be a pretty hard word, but a recent opinion by Judge Payne uses it in a sentence, and provides some guidance on when a motion to dismiss a complaint for failure to state a claim  because an assertion is not “plausible” should be denied.

Stays Pending IPR & “(Cleaned up)”

The issue of whether cases should be stayed pending PTAB review of the patent(s) in suit comes up not infrequently.  A recent opinion provides the most concise statement of what the Court characterized as its “consistent practice” on this point, as well as providing a good opportunity to explain what this “(Cleaned up)” business is all about.

“Cleaned up” is the current practice, hot in #appellatetwitter circles, of replacing extended explanatory parentheticals required by Rules 5.3 and 5.4 of the Bluebook with a simpler parenthetical that simply says “(cleaned up)” to make it more readable.  See #cleanedup.  The practice was recently adopted by the Annual Survey of American Law, which provided a useful explanation of the practice.

Typically I use (Cleaned up) to delete all the included citations in a quote, but preserve the included quotation marks for eau de binding precedent, but the quote in this case provided the opportunity to selectively edit the cites to focus on the money cites and quotes, which is a more elegant use of the tool, in my opinion.

I categorically deny that I am shamelessly pursuing a “Cleaned Up Roll of Heroes” certificate from @SCOTUSPlaces like the attached (although it would be nice.  I’m just saying).