It wasn’t at a pretrial conference, but instead in an initial responsive pleading that Apple today challenged a plaintiff’s complaint for failure to state a claim under 12(b)(6), but did not challenge venue under 12(b)(3) under TC Heartland.
A little more information this afternoon on how TC Heartland is playing out on the ground in EDTX.
Biscotti Inc. v. Microsoft Corporation, 2:13cv1015-JRG-RSP is a patent infringement case that’s closing in on trial before Judge Gilstrap in Marshall. (Readers might recall my post on Judge Payne’s recent order on the effect of Microsoft’s IPR activity on its invalidity defenses at trial.)
In the course of the pretrial conference before Judge Payne earlier today, Microsoft noted in response to a question from the Court that it would not be asserting a challenge to venue in the EDTX as a result of the Supreme Court’s decision in TC Heartland.
Prior to the Supreme Court’s decision last week, the TC Heartland improper venue argument was made in a number of EDTX cases, and to my knowledge was uniformly denied based on the then-existing Federal Circuit authority. EDTX cases such as the attached are beginning to roll out establishing procedures for arguing (or in some cases rearguing) the effect of the case on a pending case.
Great video from Mike Maslanka on lawyers and depression. Worth a view whether you need it for yourself or to stay equipped (as we all should) to help others. Link is at: https://www.youtube.com/watch?v=pEvh7nfmBBA&feature=em-subs_digest
Busy day back in the office today after two days on the road working on this fall’s ILT IP Law conference in Plano and then presenting on trial procedure in federal court yesterday in Austin.
The Future Engineer (who just graduated high school last Friday and is ready to grace Baylor with his presence this fall) went with me so he could meet some lawyers who work around patent prosecution at the planning committee meeting and then help drive home. (He’s the only 17 year old that wanted a patent lawyer for Christmas because he’s ready to start working on inventions). He was clueless that the lawyer at his elbow all afternoon in Plano was Hope Shimabuku, who as the director of the USPTO Dallas Office works around patent prosecution in much the same way Jerry Jones works around football, but I thought it was hysterical. He then got to spend the better part of two days in the truck listening to his dad answering questions from reporters about the effect of TC Heartland. He can literally handle my side of the interview without any prompting at all now. He demonstrated that to his mother last night when we got in, which got her annoyed with both of us.
Although he enjoyed lunch at the Texas Chili Parlor, watching half a day about federal court practice in Austin didn’t do much for him, although he did alert several federal judges that he likes to make gunpowder and blow things up. Have to work on that boy’s conversation skills.
The high point was when I overheard him explaining to his brother Parker why he went:
Parker: Why did you go with Dad?
Grayson. I was bored. But it was a mistake, because I got more bored.
Yep. Life with Dad.
Have a great Memorial Day, everyone.
The most common error in articles about the Supreme Court’s opinion Monday in TC Heartland is, as the Longview News Journal put it “The justices ruled unanimously on Monday that such lawsuits can be filed only in states where defendants are incorporated.” Of course that’s not right – with the Court’s holding included, patent infringement cases can now be filed in the judicial district where (1) the defendant resides (meaning only the state of incorporation for domestic corporations), or (2) where the defendant has committed acts of infringement and has a regular and established place of business.
The question I have been getting ever since Monday is what effect will that have on filings in the EDTX. Fortunately, there are some metrics on that, and I wanted to briefly discuss them, and what my expectations are as far as filings.