Indefiniteness and Plain Meaning

This is a Markman ruling that concluded that a claim term was indefinite.  The Court set forth the current standards for such an argument before concluding that the term had been shown by clear and convincing evidence to be indefinite in light of the court’s other constructions. The opinion also addresses several times the argument that a claim term should be given its plain meaning, and provides a good set of examples for when this argument will be accepted.

The “Public Disclosure” Defense in False Claims Act Cases

The list of things that can go wrong for a plaintiff in FCA cases is a lengthy one.  One is what is known as the “public disclosure bar” under which allegations of fraud based on publicly disclosed information are statutorily excluded from courts’ jurisdiction.  This opinion  tests whether this case is subject to that bar, and in the process provides a useful background on this rather terrifying little requirement, which has another land mine  encased within its text.

Dueling Motions to Exclude Damages Experts

This is likely a personal shortcoming, but I enjoy reading orders on motions to exclude expert testimony.  Order on motions to exclude damages experts are even more fun because there’s no technology involved.  And orders on motions to exclude each other’s damages experts are really fun because they provide two looks from the same judicial vantage point, using the same case facts, at motions that have to overcome the same caselaw they’re simultaneously arguing for.  This case presents just such a situation.

Ants & Rubber Tree Plants – Motions for Partial Summary Judgment of Noninfringement

My mother used to sing the song High Hopes – you know, the one about the ant trying to move the rubber tree plant?    Noninfringement summary judgment motions always remind me of that song because it’s often difficult to get those across the finish lines when the standard precludes granting the motion if there are genuine disputes of material fact. This order shows how parties on both sides address the all-important factual dispute question for these motions.

“Pruning” Type Motions to Dismiss

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.

Anti-SLAPP Presentation Interrupts Trade Secrets Presentation

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.

More Proportionality; Motion to Compel Sales Information Granted in Part

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.