Reading Markman orders is often like watching soccer while being an American. Only rarely does someone actually score a goal. This Markman is a good example. Dozens of pages of solid analysis, but it’s only at the top of p. 32 and again a few pages later that goals sneak up on you – when the Court noted that these were means plus function terms, and the lack of corresponding structure rendered the three terms indefinite.
I posted the other day that Judge Lynn’s constructions from the recent joint claim construction hearing in SEVEN v. ZTE were out. Now the constructions for the EDTX cases by SEVEN against Google & Samsung by Judge Gilstrap are out as well. This feels just like checking your lottery numbers, doesn’t it – will the constructions match?
The defendant in this case moved to strike a declaration the plaintiff submitted in support of its claim construction positions and asked for expedited briefing. The Court expedited the briefing, and the plaintiff did not respond by the time indicated. Three things happened next.
Noting the concurrent claim construction hearing she held with Judge Gilstrap last month, Judge Lynn has now issued her claim constructions in her SEVEN case, which is against ZTE.
I don’t think Judge Lynn was in the room last week when I told the audience during our local rules panel the story of how I told an EDTX judge once in a FLSA case that I didn’t have a Fifth Circuit cite for what I was asking the court to do, but I did have a case from a new Dallas judge named (I had to check the file) Barbara Lynn. The judge told me that in his court that was better than the Fifth Circuit.
It was at this point in my humorous anecdote that I looked out and realized that Chief Judge Carl Stewart of the Fifth Circuit (shown celebrating his honorary Texan-hood with Chief Judge Prost last Thursday night) was sitting at the table in front of me. But he was very nice about it afterwards.
A word about the expression on his face in the photo. He just has to be wondering where in his chambers (which are, of course, in Louisiana) he’s going to hide a certificate signed by the Governor of Texas making him an honorary Texan because if any of his Bayou State colleagues see it, his street cred is gone. He might as well show up for work in a Cowboys jersey.
Obviously Chief Judge Prost is not having the same concern.
Many courts have default rules that restrict claim construction briefing. They might be page limits applicable either to claim construction or to motions in general, or a presumptive limit on the number of terms to be construed, either in toto or at a time. This order deals with a case where limits on both were in place and a party sought leave to expand both the number of terms and the page limits, as well as asking the Court to apply constructions from a prior. It indicates which of these arguments work, and which might be best left on the hard drive.
A “final judgment” under FRCP 58 records the final disposition of a case, and starts the clock running for appellate activity. However in some cases the judgment can get a little more complicated as it can reflect not just the court’s rulings, but also the parties’ agreements to frame the future activity in the case. A recent judgment from the EDTX illustrates this latter case by incorporating “stipulations of noninfringement” based on the Court’s claim construction rulings.
I still have nightmares about the Brad Pitt & Morgan Freeman movie Seven from several years back. I don’t even like to see an image of Gwyneth Paltrow, and if I see blonde hair coming out of a box I will start screaming. (Okay, that doesn’t actually happen that much, but I worry about it a lot more than is normal). Today I can associate the word Seven with something else, albeit even scarier – a show cause order that begins “[u]nlike promises and pie crust, the Rules and Procedures of this Court are not meant to be broken, nor is their breaking to be ignored.”
The thing about patent local rules is that they often run contrary to the procedures established in the FRCPs. The FRCPs often work more like a funnel, only gradually narrowing and restricting parties’ ability to change their contentions and positions as the case proceeds. Didn’t get things just right in your pleadings? Need to change a position set out in a rog response? No problem (usually).
Instead, as even the earliest cases interpreting the EDTX patent rules’ predecessor, the ND Cal’s patent local rules stated, and the Federal Circuit later acknowledged, the rules permissibly provide a precise timeline for parties to disclose their infringement, invalidity, and claim construction positions “specifically to require parties to crystallize their theories of the case early in the litigation so as to prevent the shifting sands approach to claim construction.” O2 Micro, 467 F.3d at 1364 or thereabouts. Making changes later usually requires a heightened showing – something FRCP 15 would be horrified at, but which is well within courts’ discretion in managing these complex cases.
Of course that necessarily creates a new form of satellite litigation over the timeliness of proposed changes. The other day I posted on the issue arising in connection with a request to amend invalidity contentions, and this recent order addresses the same question when it comes to claim construction terms and positions.
Again, buried in a 105 page Markman opinion is a useful analysis of and ruling on a relatively rarely presented issue – whether an expert’s opinions have been sufficiently disclosed under the patent rules to permit their use.