One of the questions presented after TC Heartland was whether waiver would apply in the cases of defendants who did not assert the Fourco defense of improper venue prior to the Supreme Court’s decision TC Heartland. In a recent case an EDTX court reviewed recent decisions by other courts finding that waiver does apply and agreed, at least in the situation of a looming trial date.
I have commented repeatedly about EDTX judges’ use of the “mini-Markman” process to take up a limited set of claim terms that may be dispositive on an expedited basis. The idea is, of course, that if one or more claim terms will be dispositive of the case, as in Iris Connex, for example, it makes sense to focus on that on an expedited basis.
A recent case provides a good example of how the process works, with the court soliciting input as to allegedly dispositive claim terms and then setting a schedule for briefing and hearing those terms separately and substantially in advance of the regularly scheduled Markman hearing.
It wasn’t at a pretrial conference, but instead in an initial responsive pleading that Apple today challenged a plaintiff’s complaint for failure to state a claim under 12(b)(6), but did not challenge venue under 12(b)(3) under TC Heartland.
A little more information this afternoon on how TC Heartland is playing out on the ground in EDTX.
Biscotti Inc. v. Microsoft Corporation, 2:13cv1015-JRG-RSP is a patent infringement case that’s closing in on trial before Judge Gilstrap in Marshall. (Readers might recall my post on Judge Payne’s recent order on the effect of Microsoft’s IPR activity on its invalidity defenses at trial.)
In the course of the pretrial conference before Judge Payne earlier today, Microsoft noted in response to a question from the Court that it would not be asserting a challenge to venue in the EDTX as a result of the Supreme Court’s decision in TC Heartland.
Prior to the Supreme Court’s decision last week, the TC Heartland improper venue argument was made in a number of EDTX cases, and to my knowledge was uniformly denied based on the then-existing Federal Circuit authority. EDTX cases such as the attached are beginning to roll out establishing procedures for arguing (or in some cases rearguing) the effect of the case on a pending case.
In an average year about fifteen patent cases are tried in the Eastern District of Texas. Statistically, about half are complete defense verdicts, and of the remaining ones, only a few have willfulness findings, so it’s a rare case that presents both a Section 284 claim for enhanced damages and a Section 285 claim for exceptional cases status. When we do have them it allows analysis of which conduct supports (or doesn’t) an award, since courts try to ensure that a party isn’t inadvertently penalized twice for the same conduct. But a recent case out of Beaumont presents both, and provides some useful insight into a trial court’s calculation of enhanced damages, as well as the more frequently presented question of whether a case is “exceptional” for Section 285 purposes.
This is a case involving claims by the North American Deer Registry against the company it retained to process deer genetic information. The defendant sought to:
- dismiss the complaint
- compel arbitration
- transfer venue; and
- stay the case.
Judge Mazzant denied them all. On the assumption it had something to do with the law and not just Texans’ overarching interest in all things deer, I have analyzed the rulings.
I wrote recently on the surprising interest many lawyers have in removal and remand issues, and wanted to add to the database a recent order from Judge Mazzant in Sherman providing his take on removal caselaw.
Much like this photo of our twins after seeing their first Broadway show last month, there’s content here to make you both happy and sad.
First, have you ever been frustrated looking for an order to give that obnoxious partner/associate that wants to file a motion to strike something because it’s a few hours late? Well, click through and the Court’s haiku-like resolution is yours to embrace.
The Court declines to do so.
[Defendant] has not suffered any prejudice.
But there’s substantive information in this order granting a motion to strike portions of a plaintiff’s expert report because they are different than what was in their infringement contentions that’ll put a smile on your face.
There are a number of recent cases both transferring and declining to transfer cases brought in the EDTX against Google to California. This is one of the latter.