A Marshall jury in Judge Robert W. Schroeder III’s court returned a split verdict on infringement yesterday in a case involving an Israeli defense contractor’s patents on broadband technology that has already seen one trip to the Federal Circuit on the TC Heartland improper venue issue.
I just realized that a better image for yesterday’s posting of whether claim charts are adequate was literally staring me in the face – the print I keep in my office of Winston Churchill’s watercolor “A View From Chartwell.”
Look on the bright side. After that joke, your day has to get better.
One of the key features of patent litigation in many of the patent-heavy districts is mandatory disclosure of detailed infringement and invalidity contentions. The EDTX has used such a procedure since 2000, when Judge T. John Ward adopted the Northern District of California’s local patent rules for cases in his court, and the rules were adopted district-wide several years later. One of the common issues regarding contentions is when they are sufficient, and specifically when a party can chart one “exemplar” product and have that chart cover others. This was the issue presented in a recent decision by Judge Roy Payne in Marshall.
This is a patent infringement case filed last fall. By February of this year, only one defendant was left. That defendant challenged venue in its answer, and five days after the scheduling conference TC Heartland came out. The remaining defendant filed a motion to dismiss for improper venue shortly afterwards. Judge Love’s opinion granting the motion addresses a the proffered waiver argument, as well as the plaintiff’s claim that the motion should be denied because multidistrict litigation was “imminent.”
Earlier this year a Marshall jury in visiting CAFC Judge Bill Bryson’s court rendered a $20 million verdict in favor of the plaintiff against defendant Eli Lilly. Several weeks ago Judge Bryson followed up with an order explaining his reasons for several decisions during trial.
Judge Bryson’s order is an example of what I referred to in my talk about JMOLs week before last at Horseshoe Bay as a “whale fall” – the sort of order that can take weeks to fully digest, but if you’re interested in the subject of getting a JMOL on a plaintiff’s claims of willful infringement or on when certain jury instructions are appropriate or how prejudgment interest is calculated it’s worth it.
Our story begins with the defense counsel rising at trial to assert a JMOL as to the plaintiff’s claim of willful infringement…
What gets attention since TCH is the effect of the decision on new patent case filings in the EDTX, and depending on which week you check filings, they have decreased by around half as plaintiffs voluntarily decide that they don’t have the venue facts to file here and choose to file elsewhere. What gets less attention is the effect of the decision on pending cases where plaintiffs come to the same conclusion.
These decisions show how those decisions come about, and what the Court does when the parties agree that the plaintiff needs its ticket punched, but can’t decide whether to dismiss or transfer.
One of the most active corners of the venue world in recent weeks has been when an improper venue defense that is waived for failure to assert in a defendant’s initial filings under FRCP can be revived. We recently have seen cases interpreting whether the Supreme Court’s TC Heartland counts as an intervening change in the law, and last week we saw another strategy tried.
I posted the other day on Judge Gilstrap’s opinion denying the defendant’s motion to transfer venue in Raytheon v. Cray. Below is additional information on the Federal Circuit proceedings in the case, current through just a few moments ago.
I typically don’t analyze CAFC rulings, but there were a couple of opinions that came out yesterday on motions for exceptional case finding under 35 USC Section 285 – one reversing a denial and one affirming a denial – that I noticed something interesting about, especially when considered in combination with the pair of reversals in Section 285 cases at the beginning of last month.
It’s not EDTX, but it’s useful. A judge in another district issued an opinion in a patent case last week setting the appropriate boundaries for venue discovery, and I thought it bears reviewing in light in Judge Gilstrap’s recent opinion on the subject for two reasons. First, it tells us what parties are seeking, and second, it tells us what courts are allowing.