Earlier today a Tyler jury in Judge Trey Schroeder’s court returned a verdict in favor of the plaintiff in this portion of the retrial following the severance of the case, finding that Apple’s FaceTime infringed the seven asserted claims, and set damages at $302,427,950.
Good article by Wei Wang, Gregory H. Lantier, Derek Gosma, and Mindy Sooter in WilmerHale’s Eastern District of Texas Newsletter this month on motions to transfer in the district. In it, they note that the number of motions to transfer filed in EDTX cases dropped over half from 2014 to 2015, from 135 to 63, while at the same time success rates rose from 34% to 43%. They note that filings of motions to transfer are up somewhat this year so far, which I in turn note makes a lot of sense when you consider that the motions to transfer in the large number of Thanksgiving Specials that were filed in late November of last year would have been in 2016. But, importantly, thus far in 2016 the success rate for motions to transfer has leaped again, to 57%. That’s a 60% increase in the grant rate over just two years ago. They conclude that the higher success rate is the result of better-supported motions, and not because the standard the Court has applied has changed – which I’d agree with. But I’d also note that as with rulings on 101 motions, motions to dismiss and motions for summary judgment it also reflects the significant bubble of relatively weaker cases filed in 2014 and especially 2015 which largely dissipated locally after the eDekka 101 and 285 rulings around the end of last year and the beginning of this year. (More in this in real terms soon). Also, the standards for venue motions in patent cases filed in courts applying Fifth Circuit law have been pretty stable for several years now, so the variations aren’t because the law has changed or was changing during the period, as I’d argue was the case in 2009-2012-ish. In short, the variable wasn’t the judges or the law – it was the quality of motions and the quality of the facts they were based on.
Chalk another one up for the double loss column for plaintiffs. After a pair of plaintiff wins last week in Tyler and Marshall, a patent plaintiff lost on both infringement and invalidity today. A Marshall jury in Judge Gilstrap’s court in MTel v. HTC found Intel’s asserted claims not infringed, and also concluded that HTC had shown be clear and convincing evidence that they were invalid.
Well, if you’re going to miss me talking about the effect of the new federal rules on discovery and pleadings on patent litigation in Plano in November, or moderating a panel on trade secret litigation at the EDTX bench/bar in Plano (or opining online about the challenges of scratchbuilding the Apollo/Saturn V Launch Umbilical Tower in 1/200 scale) never fear – you can still catch me talking about cybersecurity for law firms with Robert L. King of Silicon Labs in Austin next month. I am honored to be participating in UT Law’s 40th Annual Page Keeton Civil Litigation conference, scheduled for October 27-28 at the Four Seasons Hotel and Suites in Austin. Attached is a PDF of the program brochure. Download PL16_brochure Leading litigators, judges, and law professors will be at the Four Seasons Hotel in downtown Austin to provide updates and analysis of important developments in civil litigation practice, with substantive coverage of practice tips, advocacy strategies, and important trends. 2016 Conference highlights: Get the latest updates on Texas civil procedure, changes in FRCP, and insurance law developments Hear premier Texas litigators discuss challenges and opportunities in the arenas of damages, contorts, and alternative dispute resolution in 21st century litigation Get a Texas Supreme Court Justice’s point of view on significant decisions from the past term Learn tips for handling common issues that arise in litigation in the bankruptcy court and in civil litigation affected by bankruptcy Learn what lawyers and law firms need to know about data security to avoid losing clients and getting sued (this is my part) Look at important hearsay issues, with an emphasis on hearsay appearing in social and other electronic media Hear about the practicalities lawyers and courts face as jurors increasingly live online and have new expectations for access to the facts, and lawyers have new access into jurors’ lives Explore new opportunities in employment law for civil litigators Earn up to 3.50 hours of ethics credit You can see the program agenda and register online at www.utcle.org/conferences/PL16. Special group registration rates are also available by calling 512.475.6700. I hope to see you there. Meanwhile, I am available for WebEx presentations on the Saturn V LUT thing. Seriously. The LUT is the great white whale for baby boomer plastic modelers, and I am after it. Hard. (I have to have something to fall back on if this whole Dak Prescott thing doesn’t work out).
My cochair Steve Malin (Chen Malin) and I would like to invite you to attend the Institute for Law and Technology’s 54th Annual Conference on Intellectual Property Law. The program will be held November 14-15, 2016 at the Center for American and International Law in Plano, Texas. This long running program brings together leading intellectual property practitioners from around the country for outstanding substantive and procedural programming, as well as numerous networking opportunities. You can view the schedule and faculty here. Topics include: Networking Breakfast Presented by the Women in IP Task Force Annual IP Law year in Review Presentations Section 101 Deep Dive for both Prosecutors and Litigators USPTO Enhanced Patent Quality Initiative Drafting Claims while Avoiding Indefiniteness and Other Pitfalls Changes to Pleading and Discovery Rules in ED Tex. 5 Things You Should Know About the Amended PTAB Rules Two In-House Counsel Panels Comparison of Federal and Texas Trade Secret Acts F/RAND Issues from both Sides of the ‘V.’ – the Good, the Bad, and the Ugly CLE credit will be available. View the full agenda and register now. For more information, click here or contact Lilly Hogarth at email@example.com or 972.244.3424
Last week was apparently Nokia Engineer Week in the Eastern District, as two juries found for two plaintiff patent holders asserting patents by Nokia engineers. As I posted last week, on Thursday a Tyler jury in Magistrate Judge K. Nicole Mitchell’s court found that Apple willfully infringed a patent by a Nokia engineer on wireless communication technology and awarded $22 million. On Friday, a Marshall jury in Judge Gilstrap’s court assessed damages in a retrial of a March 2016 patent trials at $2.3 million. Why Nokia patents? Industry followers may recall that Nokia sold off large numbers of its patents beginning in 2011 after selling its cell phone business to Microsoft. While I do not know what the respective splits any proceeds from last week’s verdicts would be, a 2011 story reported that proceeds from at least some of the patents would be divided in thirds between the acquiring entity related to the plaintiff in last week’s case, Nokia and Microsoft. See Mosaid Acquires 2,000+ Nokia Patents, Will Handle Licensing & Litigation For A Cut. Is This That Damages Retrial Of Which You Spoke? Actually, no. Readers may recall that in March a Marshall jury in Judge Gilstrap’s court also found against LG and in favor of Core and awarded $3.5 million in damages. In August, Judge Gilstrap set aside the damages verdict in that case, finding that there was insufficient evidence to support the damages verdict, and ordered a retrial. This is not that case. It involved smartphone user interfaces, while last week’s case involved patents dealing with battery life and voice quality.
Yesterday a Tyler jury in Magistrate Judge K. Nicole Mitchell’s court found that Apple willfully infringed a patent by a Nokia engineer on wireless communication technology. The patent, which was acquired and asserted in the case by plaintiff Cellular Communications Equipment, a subsidiary of Acacia Research, dealt with managing the resources used to send data over a communications network, and the accused devices were Apple’s iPads and iPhones. The jury found all five asserted claims infringed, that none of the five had been shown to be obvious, and rejected a claim of improper inventorship. The jury further found that the infringement was willful and awarded $22.11 million in damages. The suit had previous included claims against the mobile carriers that sell Apple’s devices (AT&T, Verizon, Sprint, Boost and T-Mobile) but Judge Mitchell severed and stayed the claims against the resellers, noting that the plaintiff couldn’t get damages from both Apple and the resellers anyway. “What about post-grant proceedings?” I hear you asking. Yes, Apple filed a petition for IPR under the AIA, and the PTAB declined to institute review, finding that Apple hadn’t established a reasonable likelihood of prevailing. The PTAB had also denied IPR reviews by HTC, Dell, Amazon and other companies on the patent. Apple at Trial in the Eastern District For a little context on Apple’s recent trials in the district, my notes show that a prior verdict against Apple in Tyler this year (VirnetX II and damages trial on VirnetX I) was set aside by Judge Schroeder, and the retrial in that case starts later this month. Going back a little further, last year Apple tried three patent cases in the EDTX, all before Judge Gilstrap. It won two and lost the third, but Judge Gilstrap later set aside that verdict. Incidentally, the CCC case was originally assigned to Judge Gilstrap, but the parties agreed to trial before Magistrate Judge Mitchell, so Apple’s immaculate record at trial with Judge Gilstrap continues. To find a patent verdict against Apple that wasn’t later set aside by the EDTX trial judge you have to go back to Mirror Worlds, which … no, wait, Judge Davis set that one aside as well. Hmm. Okay, here we go – there is one for $9 million in 2011, and another for $19 million in 2009. To my knowledge neither resulted in a change on appeal (appeals may have been filed, but didn’t result in a decision as best I can tell). There was also the original VirnetX verdict in 2012, which the Federal Circuit affirmed on liability and reversed on damages, and that is the Sisyphean ball that is going up and down the stairs on the old side of the Tyler courthouse again this year. Running the numbers on those results, and assuming CCC doesn’t change at trial or on appeal, it looks like Apple has won two at trial, lost three (totalling $42 million), and gotten three (for $208 million, $532 million and $624 million respectively) set aside by EDTX judges at the JMOL stage, and a fourth for $368 million set aside at the Federal Circuit (subject to the aforementioned retrial on damages). That’s a 62% win rate at the district court, rising to 66% counting the appeal. But I really don’t think that takes fully into account Apple’s success in getting $1.36 billion in verdicts set aside at the JMOL stage. To better evaluate this, perhaps a useful way to look at that is this. Apple has been successful in setting aside 98.5% of the damages assessed against it by Eastern District of Texas juries at the district court level. Including the appellate success, its set-aside rate rises to 98.8%. Even assuming Judge Mitchell denies any JMOLs in the CCC case (Apple has only lost three of eight JMOL rulings, but let’s assume they lose this one), the success rate would only drop to 97%. (A note on Mirror Worlds: For calculation purposes, I am – as always – using the number $208 million for the jury’s verdict because it gave the same damages number for each of the patents. However, since the accused products were the same, the damages were duplicative and had Judge Davis not set aside the entire verdict on other grounds, the judgment would have been for $208 million plus interest, costs, etc. It would not have been $624 million, as it is often reported in the media. The jury was asked separate damages questions on each patent to avoid the need for a retrial if the judge set aside some, but not all, of the three asserted patents, since there would be damages awards based on each patent on which a judgment could be based. Since he set aside all three, the issue became moot, but it was an example of verdict form craftsmanship since it would have avoided an unnecessary retrial on damages if only one or two of the three patents had been set aside.)
The agenda is out for the 2016 Eastern District of Texas Bench/Bar conference, which will be held again at the Plano Marriott Legacy in Plano, Texas. Download EDTX_Bench_Bar_2016 Events start Wednesday morning, with optional (1) golf; (2) handgun shooting; and (3) shotgun clay pigeon shooting excursions. Wednesday afternoon is joint panels with the Institute for Law and Technology of the Center for American and International Law and the PTAB Bench/Bar Conference, followed by social events in the evening. Thursday morning the conference kicks off with a presentation by Michelle Lee, Director of the U.S. Patent & Trademark Office, followed by other presentations and panels, and culminating in a keynote address by former CIA and NSA Director General Michael Hayden at the President & Chief Judge’s dinner. Friday includes panels with the chief judges of the Federal Circuit and the Fifth Circuit, followed by a panel I am moderating on trade secret cases, including under the new DTSA, trials in East Texas, jury selection and the Sherman Division. The following is a list of the judges who are speaking or appearing. Chief Judges Sharon Prost (Federal Circuit) Carl Stewart (Fifth Circuit) Ron Clark (ED Tex.) Barbara Lynn (ND Tex.) Leonard Stark (D. Del.) Other Appellate Judges Raymond T. Chen (Fed. Cir.) Kathleen O’Malley (Fed. Cir.) Gregg Costa (5th Cir.) District Judges Outside EDTX Lee Yeakel (WD Tex.) Richard Andrews (D. Del.) EDTX Judges District: Clark, Crone, Gilstrap, Mazzant, Schroeder; Magistrate: Craven, Giblin, Hawthorn, Love, Payne, Mitchell, Nowak, Priest Johnson Judges Outside the U.S. Young Gi Kim (Uijeongbu District Court in Republic of Korea) The Honorable Michael Fysh, QC SC (UK – former) Registration information is on the brochure. I look forward to seeing many readers there!