Marshall/Tyler patent scheduling conferences – September 11, 2018

If it’s the second Tuesday of an odd numbered month, there’s a good chance there are patent case scheduling conferences going on across the street at the Judge Hall courthouse.  This month was no different, with numerous cases heard for both Judge Gilstrap’s Marshall and Tyler dockets, as set forth below.

Marshall – Harrison County Literacy Council Spelling Bee

Dana Haden, Tim Huff and I will be defending our championship on behalf of the Greater Marshall Chamber of Commerce last year at the Marshall-Harrison County Literacy Council’s 2018 Corporate Spelling Bee in Marshall this Friday. The event raises funds and awareness for my mother’s favorite organization, the Literacy Council, which provides free, adult basic education, GED, English language, computer, and citizenship programs to help eliminate and overcome barriers so that all of our community members have the opportunity to pursue and enjoy more fulfilled and productive lives.

Even giant fire ants.

So here’s a reminder to locate an adult literacy program in your area and volunteer or donate.  Here’s a site that will hook you up with programs in your area.

“Stream of Commerce” & “Regular and Established Place of Business”

The Supreme Court’s recent opinion in TC Heartland has had the effect of shifting the focus of venue briefing in many cases from Section 1404 motions to transfer venue to Rule 12(b)(3) motions to dismiss for improper venue, often asserting that the defendant does not have a “regular and established business” in the district, as well as Section 1404 motions seeking a transfer based on convenience.

Because of the similarity of the former improper venue analysis to a motion to dismiss for lack of personal jurisdiction, those motions were sometimes brought together, even though to be successful, the latter had to show the lack of sufficient contacts with the entire state of Texas, not just the district.

This case presents both flavors of motions to dismiss in the case of automobile manufacturers and distributors, and required rebriefing of the convenience issues after the Court’s ruling on the first two motions.

Congratulations Alan Albright – USDJ – WDTX – Waco Division

If readers will permit the brief digression, I wanted to congratulate Texas’ newest federal district judge, Alan Albright of Austin, who was confirmed by the Senate last week for the vacancy in the Waco Division of the Western District of Texas.

I first met Alan the fall of 1986 when I moved to Austin to start graduate school and worked days as a runner delivering papers at his firm McGinnis, Lochridge & Kilgore.  They had this newfangled “facsimile” machine down on the ninth floor, but since you could count the number of offices in Austin that had one it could send or receive from on two hands, the only way to deliver papers between offices was to have one of us drive (or walk) them to where they needed to go.  Seriously.  Anything that had to get somewhere faster than U.S. mail we hand carried.

Alan had just joined the firm recently as well, after clerking for Judge Nowlin in Austin, and was a ball of fire, all starched shirts, suspenders and that goofy looking Saab. But he was always a great guy, even to a mere runner like me.  We’ve run into each other numerous times through the years on patent panels in Austin and Horseshoe Bay, and he’s tried cases here in Marshall, so he knows us up here behind the pine curtain.  And he has a son named Grayson as well, so you know he has sound judgment.

The Waco courthouse is also a special place. I interned there for Judge Smith 27 years ago while in law school, so my first experience with these bizarre things they don’t teach you about in law school called “motions” was in what will soon be Judge Albright’s chambers.  I had a chance to visit with Alan a few months back about Waco and told him a few things that make it special to my family, and I’m sure it’ll be special to his as well.  (He already knows he needs to switch to Dr Pepper).

Congratulations, Alan.  We’re proud of you and for you.

VirnetX – JMOL, MNT, enhanced damages & attorneys fees rulings

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.