Marshall Patent Scheduling Conferences – September 2023
Parking on the square in Marshall is almost becoming an issue as the number of patent cases being heard at scheduling conferences is continuing to increase.
Judicial Conference Revises Policy to Restrict Remote Audio Access
The actual press release says “Judicial Conference Revises Policy to Expand Remote Audio Access Over Its Pre-COVID Policy” and the AO states that “[t]he revised policy, adopted at the Conference’s biennial meeting, will permit judges presiding over civil and bankruptcy cases to provide the public live audio access to non-trial proceedings that do not involve witness testimony.” What is actually does, however, is the opposite – it replaces the existing rule which permitted remote access with a new rule that eliminates it in most (perhaps all) cases.
Prior to COVID, remote access to proceedings was not permitted. During COVID, it was permitted for both trials and hearings. This gave birth to the remote access that we’ve grown to know and love for Judge Albright’s court, where you could listen in (along with dozens of law students from Baylor, UT or both) to claim construction hearings, pretrial hearings, and even trials. You could even dial up and watch hearings (not trials) to watch and learn. Or if you had trouble getting started on an afternoon nap – claim construction was there for you.
The Conference adopted the revised policy on the recommendation of its Committee on Court Administration and Case Management (CACM), with the endorsement of the Committee on the Administration of the Bankruptcy System and the Committee on the Administration of the Magistrate Judges System. https://www.uscourts.gov/news/2023/09/12/judicial-conference-revises-policy-expand-remote-audio-access-over-its-pre-covid It is continuing to study related issues, including “whether remote public access to proceedings involving witness testimony could increase the potential for witness intimidation or complicate witness sequestration” so there are some legitimate issues to be considered here long term. But the important thing is that in the short term courts are having to rethink whether any proceedings can be opened to the public online.
Specifically, I noted that the new policy purports to “provide the public live audio access to non-trial proceedings that do not involve witness testimony.” But I understand whether the actual policy – as opposed to the press release – may effectively do this. So we’ll be watching to see if there are some types of proceedings which will remain open to the public.
This doesn’t affect party access – trial teams can still get a link, as we had for a hearing this afternoon (although the “Judge Albright – Criminal Proceedings” header did cause a little apprehension since we didn’t “think” we’d done anything justifying the change). But the public will have to find something more interesting to watch than Markman hearings now. Star Trek: Lower Decks anyone?
No, This is A Different Case Dismissed For Failure to Respond, But I Can See Why You Thought That
Yesterday I posted on a WDTX order dismissing a patent case brought by the Ramey firm on September 21 with prejudice for failure to respond as ordered by the court after an initial dismissal. This is a completely different order – it is a WDTX order dismissing a patent case on brought by the Ramey firm on September 22 with prejudice for failure to respond as ordered by the court after an initial dismissal.
“The standard for excusable neglect is an equitable one. And the equities do not lie with Plaintiff.”
Judge Pitman declined to set aside his dismissal of the plaintiff’s patent infringement case with prejudice following the plaintiff’s failure to amend in response to a dismissal for failure to adequately plead claims of direct infringement. But this description of this order is like calling County Line barbecue “something to eat”. So let’s dig in.
Motion for Leave to Amend Contentions
Judge Payne denied the motion, finding that the plaintiff was not sufficiently diligent with respect to the proposed amended infringement contentions adding additional accused products, and that addition at this stage would be highly prejudicial to defendants. But in a footnote it stated that “[r]ecognizing the potential importance of the amendment, the Court does not foreclose the ability of Finesse to pursue the additional products in a separate proceeding.”
Motion For Judgment On The Pleadings Under Section 101 Granted
One of my favorite things about modelbuilding is the opportunity it gives me to thoroughly research a topic. Last night I was studying the above recently discovered photo of the U.S. carrier U.S.S. Lexington (CV-2) shortly before the Battle of the Coral Sea in May 1942 which helps nail down once and for all the burning question of whether she had removed the second boat boom aft on the port side for a May 1942 model I’m building (it’ll be my fourth of the same ship at the same battle because I gotta be me). Similarly, with the Waco patent docket thrown to the winds, almost every substantive order now is from a different judge – here the WDTX’ new chief judge Alia Moses, granting a motion for judgment on the pleadings for lack of patentable subject matter, which provides significant insights far beyond the bare language of the order.