Motions for Partial Summary Judgment and the Word “Shall”

Motions for partial summary judgment are an oft-used tool in the trial lawyer’s arsenal, especially since the 2010 amendments to the FRCPs which changed the terminology referring to them, and saw the triumphant return of the word “shall” after a three year exile in favor of the word “should.”

Accordingly, this opinion which came out earlier today is of interest to readers as it provides a detailed analysis of what the rule requires and doesn’t require, as well as an analysis of how the MPSJ can best be used (or not used) in patent cases.

The “how thin can you slice the apple” metaphor is thus again relevant this week.

Bifurcation – what it is, and why you’re not getting it

An issue that comes up from time to time is whether a trial should be bifurcated into different proceedings.  In a patent case, a court might try invalidity separately before infringement, or invalidity and infringement, and then the issue of willfulness, etc.

The attached case presents the issue of whether an issue of corporate veil piercing/alter ego should be tried before the rest of the case.  The attached order resolves the motion, but more importantly provides the relevant analysis for such requests under Fed. R. Civ. P. 42(b).

Happy Fourth of July

“It has ever seemed strange to me, how weapons and warships – the tools of death – are the loveliest things man has made.”  Poul Anderson, The Sign of the Raven. This lovely view of the Lexington rounding Ford Island in Pearl Harbor en route to her final refit in March/April 1942  is a fitting image to celebrate the Fourth of July this year.  Even if you don’t make it your screensaver. Happy Fourth, everyone.

Section 1404 venue order

In recent weeks I have been looking at various venue opinions over the past few months, and realized that I’ve been giving Section 1404 motions asserting inconvenience short shrift since improper venue post Heartland/Cray is sort of the new black in venue law.  This opinion remedies that somewhat with an opinion from a few weeks back that has some really useful insights into the relevant analysis.

Verdict in Maxell v. ZTE; Jury Findings On Eligibility Under Section 101

A Texarkana jury in Judge Schroeder’s court returned a verdict in favor of Maxell against defendant ZTE (USA), Inc. last Friday following a two-week trial.  The jury found all 16 claims from the 11 asserted patents infringed.  Eleven of the claim from seven patents were found to be infringed willfully. The jury found that four claims across two patents had not been shown to be invalid as anticipated or obvious (one question for all invalidity theories), and assessed damages at $43.3 million. But the jury also made an additional finding in the defendant’s favor with respect to five of the claims that bear some closer scrutiny, as it begins to tell us how 101 claims can be addressed in front of a jury.  This reminded me of how Judge Schroeder addressed a similar issue dealing with contract formation in my April jury trial in Texarkana, so I wanted to address that issue in some additional detail (as well as a few others) by analyzing the court’s instructions to the jury.