A trip to the West Coast for a mediation kept me from posting this earlier, but Judge Schroeder’s unredacted opinion in the VirnetX case resolving the postverdict motions is now out, and provides the latest analysis on many issues of interest to practitioners, including most notably enhanced damages, as none were awarded.
Apologies to Yeats, but it is referred to as the “most thoroughly pillaged piece of literature in English literature”, so piling on is permitted. Judge Schroeder entered another final judgment in the VirnetX case last week after denying defendant Apple’s most recent JMOL and motion for new trial. The order itself is filed under seal for the moment, but will be unsealed, less any needed redactions from the parties, on September 10. VirnetX – final judgment VirnetX – sealing order
This is the first weblog post I have written standing at the podium in an EDTX courtroom, but the counsel table chairs are too low to use counsel table, and nobody else is in here, so why not? My cocounsel Brent Carpenter and I just finished a jury trial in Judge Trey Schroeder’s court in Texarkana, and while waiting on the jury (which is still out) I saw that Judge Schroeder put out a 54 page opinion resolving postverdict motions in the Elbit v. Hughes case, include exceptional case fees, yesterday so I wanted to post on that.
Motions for new trial don’t have quite the same significance in federal court as they do in Texas state court, but they are, nonetheless an important tool to at least evaluate after hell has gone to a handbasket at trial. In this Sherman Division case, Judge Clark denied a motion for new trial by the losing party which raised several issues.
These JMOL rulings arise out of a trial last year in a competitor case in which the jury found both sides’ patents invalid, and neither side’s patents infringed. Judge Gilstrap observed, “[a]s Shakespeare’s Mercutio might have said if he been a member of this jury, “A pox upon both your houses.” William Shakespeare, Romeo and Juliette, Act 3, Sc. 1.”
As we will see, it isn’t getting any better for either party.
It’s been a busy few weeks finalizing some other projects, including tests, papers, seminar presentations and the like (and I finally finished that anime-ish P-40 for Parker with accurate paint colors), but I’m finally able to turn more of my attention to some of the very interesting activity in the district in the last few weeks. And speaking of interest, there are few cases that have generated more than VirnetX v. Apple, which just had its most recent trial’s postverdict motions come out. Most legal news is interested in the bottom line – that the verdict amount of $302 million resulted in a $439 million judgment, but for practitioners the analysis of how it got there is of great interest – I am not the only one out there that enjoys a good JMOL. So I wanted to work through the motions, but only after a short … well, that’s a lie, it’s not going to be short – procedural history.
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…
Those who have been reading this weblog for a while know that I’ve got a thing for JMOL rulings. They are hands down not just the most useful documents to review for a forensic understanding of what happened in a particular case, but also to learn what the requirements are for claims and defenses.
My interest in JMOLs started before I even started practicing law. In the winter of 1991 I was in my last quarter at Baylor Law School, preparing for my upcoming clerkship with Judge Hall in Marshall by interning for a federal judge in Waco and taking Federal Courts from Prof. Bill Underwood, who had just started at Baylor the prior year. Prof. Underwood emphasized the importance of knowing the FRCPs by pronouncing that if we didn’t know the forthcoming Dec. 1, 1991 amendments to the FRCPs, we wouldn’t pass his class. As a result, I spent the next ten years as (it seemed) the only lawyer east of Dallas that knew what the rules were on subpoena range – because they were in that batch of rule changes.
I have to mention that this was before Prof. Underwood became the Baylor Practice Court professor, a job he held before becoming Baylor’s interim president from 2005-2006, a job he did surprisingly well in. I say “surprisingly” because it’s hard to picture a Baylor PC professor excelling in a job that doesn’t involve torturing law students. It’s like finding out that Genghis Khan took a sabbatical from pillaging to run a successful Habitat for Humanity program. Or a T-rex taking a break from chasing sauropods to set up a child care program for Triceratops eggs. It’s just not expected. I note that Professor Underwood has continued his career outside the fields of torture and despair enhancement as president of Mercer University since 2006, and I wish him well. Again, I didn’t have him for PC, so this is easy for me to say.
Where was I? Oh, yes, JMOLs. Guess what else was in those Dec. 1, 1991 amendments? The motion previously known as a “directed verdict” was renamed “judgment as a matter of law” and given a new scope. And wouldn’t you know it, nine months later I’m minding my own business at the law clerk’s table in the courtroom in Marshall when Judge Hall grants one of these newfangled motions, sends the jury home, and promises a written order.
What came out of that 13 days later was Johnson v. Bekins Van Lines, 808 F.Supp. 545 (E.D. Tex. 1992) – one of the first reported cases using the new name and standard, and a foxhole’s-eye view as to the new rule in the most sensitive of contexts – a court deciding that the evidence was insufficient for the case to go to the jury. I still have the advance sheet on a shelf in my office, and I’ve never stopped appreciating the unique insight that the explanations contained in JMOL rulings can provide into a case.
The most recent JMOL from the EDTX comes from Tyler, in
The next situation relevant to the remittitur/additur distinction in patent cases arises when the trial judge reduces the amount of damages determined by the jury. That happened in this recent EDTX patent case when
I mentioned previously that there’s really no “additur” by which a judge can scratch out the damages number awarded by a jury as insufficient under the evidence and increase it. While a trial court can effectively reduce a verdict via “remittuitur” or via JMOL/MNT practice, the reverse isn’t true. But to use an overused word, patent cases are exceptional in that judges do have the ability to “enhance” damage awards under 35 USC 284 where a jury has made a finding of willful infringement. Such was the case in