ILT learned long ago that if we schedule Tom Irving as the last speaker – nobody leaves. So I am, once again, thoroughly enjoying having Tom yell at the audience about the ethical pitfalls inherent in patent prosecution.
One of the commonly cited uses for a motion to dismiss to to identify and cut out of a case claims or defenses which don’t have support, either in the law or in the facts of the case. Such motions serve the useful purpose of pruning cases back to what’s actually at issue, although I have an editorial comment on that below.
But as with any pruning job, there’s a line between cutting off the dead wood and cutting out causes of action that are still at least potentially live. This recent EDTX case illustrates where this line is with respect to pleaded claims.
This case is a little unusual in that the day before the Markman hearing the Federal Circuit affirmed another district court’s grant of summary judgment of indefiniteness based on construction of a single word. The Court asked for additional briefing, and after considering it, issued the attached opinion.
Just witnessed one of the more brilliant presentation tactics I’ve ever seen. Paul Storm was just up talking about a case involving trade secrets, and as soon as he mentioned a particular party, his co-panelist Mike Karson stopped him, and took over the podium to begin explaining the effect that an Anti-SLAPP motion could have interrupting a case (as he did Paul’s presentation). Brilliant. Just brilliant.
This is an order resolving a motion to compel on damages issues in a patent case. At issue was whether the Defendants, a parent and a subsidiary, were required to provide financial data on infringing sales made by the parent to entities other than the named sub, and whether Defendants were required to provide financial data for certain additional products. The Court granted one but denied the other, citing the “p” word and providing a useful list of things not to do to preserve a claim for discovery.
This case presents one of the more interesting examples of partial stays due to parallel proceedings before the PTO, with the court staying some of the claims, and severing and proceeding to trial on others. It also illustrates the consequences of not joining in pending IPRs.
It feels like a Monday again, so let’s look at another False Claims Act case. This is another report & recommendation adopted by the district judge which addressed five separate motions to dismiss the Relator’s First Amended Complaint. And they seem familiar, somehow.
Did you know there was a Texas Business Opportunities Act? I did not know that. But here it is, one of the pleaded causes of action in a case brought by unhappy franchisees of a non-surgical weight loss business. Which brings up another thing I’d never heard of before – a Sculpt Pod. Oh sure, I saw it in Little Shop of Horrors but as a legit weight loss device?
All of which, of course, cannot help but generate a motion to remand this very interesting set of facts and causes of action to back to state court, with some interesting observations by the Court on when a claim arises under federal law.
This Monday’s False Claims Act case is a report & recommendation by a magistrate judge, adopted by the district judge, which addressed a motion to dismiss relator’s claims under the FCA’s first to file rule, and motions to dismiss under FRCP 12(b)(6) and FRCP 9, which implicated both normal and heightened standards of pleadings. No objections to the report were filed, thus the district court’s review was limited to plain error / manifest injustice, and it did not find any.
Let’s say you defeat an adversary in litigation, and you’re looking for assets from which a judgment can be satisfied. Can you get discovery into your former opponent’s disposition of assets? The answer is yes, but not prior to when you made your claim. Why? Because it would not be proportional to the needs of the case. This order makes that finding, but then defines what discovery would be “proportional” under the circumstances.