Marshall defense verdict ties 2017 EDTX verdicts at 3-3

If a plaintiff win followed by a defense win followed by a … bores you, don’t watch verdicts.

This afternoon a jury In Judge Payne’s court in Marshall returned a defense verdict on both infringement and invalidity. That ties EDTX patent verdicts for the year at three each. This isn’t exactly a surprise since the win rate for the last eight years is 49.3%.

I’m out spring breaking with my kids the rest of the week but will post with more details on Monday.

EDTX Notice of Vacancy – Pro Se Law Clerk

The United States District Court for the Eastern District of Texas is accepting applications for the position of Pro Se Law Clerk. The continuation of this position is subject to the annual allocation of pro se law clerk positions issued by the Administrative Office. The duty station for this position is in the Tyler office. Check the employment section of the court’s website for additional information regarding the posting.

The EDTX weblog award for best article on the TC Heartland v. Kraft argument goes to …

The Eastern District of Texas weblog award for best article on the TC Heartland v. Kraft argument before the Supreme Court earlier today goes to Erin Coe’s Texas in the Rearview Mirror? Glory Days Could be Numbered In The Country’s Busiest Patent Court in today’s Law360 In Depth.  No lies (that 45% of patent cases are being filed in EDTX), damn lies (that a tech company built an ice skating rink on the downtown square) or statistics.  Well, it actually does have statistics, and pretty good ones, now that I think about it.  And I appreciate that it provides complete stats on key things like filings, dispositions, and so forth.

The article aptly summarizes the arguments in TC Heartland, and the issues and arguments surrounding the EDTX patent docket, leaving out the alternative facts.  And a few quotes bear mentioning…

General Order 17-05 – Reassigning Sherman Division Criminal Cases

Effective April 1, 2017, Sherman Division criminal cases will be reassigned/assigned as follows:

Cases assigned to U.S. District Judge Marcia Crone will be referred to Magistrate Judge Christine A. Nowak.

Cases assigned to U.S. District Judge Amos L. Mazzant will be referred to Magistrate Judge Kimberly C. Priest Johnson.

Five cases are exempted from the reassignment of cases.  They are:

1. USA v. Jose Victor Hernandez-Cuellar, 4:16cr111-ALM-CAN
2. USA v. Jessie Jerome Jorden, et al., 4:16cr73-ALM-CAN
3. USA v. Anthony John Yanis, et al., 4:16cr128-MAC-KPJ
4. USA v. Salvador Parrish Rodriguez-Pulido, et al., 4:16cr34-MAC-KPJ
5. USA v. Ryan Lee Hastings, 4:16cr89-MAC-KPJ

It’s Not All Rainbows and Ponies – Laura Shepperd

There are some loud people in Marshall, and Laura is definitely two of them.  And that’s a good thing.

Marshall being Marshall, when I started working with paralegal Laura Shepperd 24 years ago, she was the third member of her immediate family I’d worked with.  She helped break me in over the next 10+ years and teach me what would get you killed by your legal assistant, which is what we called them back then, with the exception of Scotty Baldwin, who simply yelled “goddamn Hiser” or, for variety, “Hiser goddamn”.  The problem was that anything Scotty said was so persuasive it was like listening to Charlton Heston call for bigger Post-Its as if the fate of the people of Israel depended on it, so I really missed when the old firm moved into bigger offices because you couldn’t hear him hollering for dear, sweet Jean.

Back when we were in high school in Marshall, Laura was active on our school paper, and then went on to pursue a degree in print journalism, writing for The Battalion at Texas A&M University as a student and then briefly as a reporter at the local newspaper. After raising three children and working twenty years as a legal assistant, she left legal work and began focusing on her writing.  I recently finished her debut, It’s Not All Rainbows and Ponies, a memoir about her treatment for alcoholism several years ago.  You can read about the book in the Marshall paper here, including an interview with Laura, but I wanted to take a few minutes to focus on her book and its subject of treatment.

Substance Abuse

It’s not news that substance abuse, including alcohol, is an issue in the legal profession – it’s something that the State Bar of Texas works very, very hard to help lawyers with through the Texas Lawyers’ Assistance Program.   One thing Laura’s book points out is that it isn’t just lawyers that suffer from alcohol abuse – the people around lawyers face the issue as well, including lawyers’ staff and families.

What her book does is detail her treatment for her problem – her trip to rehab, her experiences in rehab, and her successful return to sobriety.  What the book does not cover, as the Marshall paper inadvertently implied, is her successful treatment for breast cancer, which she was diagnosed with just days after the book was published last year.  But for her, the experiences were related.  “I definitely think overcoming my addiction helped me deal with breast cancer,” she has said. “My faith is so strong. My faith grew so much in rehab. When I was diagnosed, I knew God was with me and I would be OK no matter what.”  So a little known side benefit of rehab – it helps prepare you for cancer.

So why is this book worth your time?  First, it’s a good read, and second – we all need to know this.

Good Writing

The first thing that’s important to know about Laura here is that she can flat write.  Reading someone’s experience in rehab is not an intuitively pleasant experience, but she really puts you there.  She tells you – skillfully – what she was thinking and feeling, and not a page went by that I wouldn’t see a turn of a phrase and think “I wish I’d said that.”  She tells the reader what it was like, and gives the reader an understanding what rehab was like – the detox, the effect on her daily life, the emotions of leaving her family – and if you know Laura, you know that her family is even more important to her than the Fighting Texas Aggies (whoop!) and the Dallas Cowboys. (Personally, I think she’s faking the Texas Rangers thing, so I’m not including that).  When you read history like I do, sometimes you’re forced to endure some really bad writing in memoir form by a lawyer or a soldier or politician just because you want to know what they did.  This is not that at all – it’s the Memoirs of Ulysses S. Grant of rehab experiences. (Trust me – that’s high praise).  You’ll learn about rehab, but it’s not unpleasant, and what becomes clear not far in is that there is great love and pride in the experience – love and pride that she and others carry away to help them in their lives back home.

You Need to Know This

And that’s the other reason why you need to read this.  Whether you are contemplating seeking assistance yourself or advising or counseling a friend or family member that is, this gives you an insight into what it is like.  One thing that being around the State Bar has taught me over the last twelve years is that we serve our profession better when we can help each other.  Being able to counsel a colleague about treatment is something that ought to be in all our toolkits.  If we see a friend or colleague in need, we know to know what they can do to get help – see TLAP supra – and be able to talk knowledgeably about the process.

Why is that important?

Because deciding to get treatment in rehab is a scary, scary thing, Laura tells us.  It’s so scary I don’t see how she brought herself to do it.  But the scariest thing, she makes abundantly clear, is the uncertainty – the not knowing what’s going to happen next, and what to expect.  When her daughter carried her to rehab and dropped her off, she had no idea what it would be like.  But after reading this book, we do.  We know that nothing that happens there is something to be afraid of, and we understand from someone who’s been there that there is nothing as bad as doing nothing.  It reminds me of what Sting once said in a slightly different context.  “Marriage,” he told Rolling Stone, “is a hard, hard gig.  But the rewards are infinite.”  (Nobody tell my wife I analogized marriage to treatment for alcoholism, okay?)

Funny as Hell

The other  thing that you have to know about Laura is that she is funny as hell.  At least three times a page she would make some smartass remark to herself and I’d smile because I knew this wasn’t taxi wit – I’d heard her say it out loud before in real time.  If she was going to be in rehab, there was going to be humor found if it had to be at knifepoint.  My absolute favorite part of the book was when she decided to make a hobby out of harassing this one nurse every time she saw her.  If her pills were not right – it was that nurse’s fault.  If something wasn’t right with her blood pressure – well, you know it only happens when I see you Miss Louise …

It may be an East Texas thing, but I once heard an outsider observe that “the first thing you say about someone is always bad,” and if we like them, we do it to their face.  I remember Judge Hall was a master of it.  If he wasn’t complaining about you, it kinda hurt your feelings.  Laura loved the people she was around – but she still gave them a lot of shit.  Reminds me of a sweatshirt she once got her boss that said “I Yell Because I Care.”  It’s like that.  Or as Scotty would have put it, “Hiser, goddamn.”

You’ll like it, and you’ll learn something useful.  What more could you ask for?

Motion to Exclude Experts’ Testimony

With trial only a few weeks away in this case, the Court ruled on Defendant’s corrected motion to exclude portions of the plaintiff’s damages and technical experts, which arguing that their opinions are insufficiently reliable under FRE 702.  The Court’s ruling on the motions sets out the relevant considerations for experts, and explains its rulings in some detail.  They also include, candidly, interesting holdings on what constitutes expert versus lay testimony, and when a defendant’s gross sales numbers might be admissible.

Laches? Uh, no.

This isn’t exactly EDTX news, but the Supreme Court just eliminated laches as a defense in most patent cases, noting that Congress had provided a statute of limitations for patent claims, and that precluded a laches defense.  The decision wasn’t unexpected, since it had held the same thing for copyright cases in 2014. In fn. 4 of the opinion, the majority rejected the dissent’s argument that, insofar as the lack of a laches defense could produce policy outcomes judges deem undesirable, there was a “gap” for laches to fill, notwithstanding the presence of a statute of limitations, concluding that that was precisely the kind of “legislation-overriding” judicial role that it had disclaimed in the copyright laches case in 2014.  See Petrella, 572 U.S. at ___ (slip op., at 14). 15-927_6j37 (1)

Motion to Bar Expert From Reviewing Confidential Information

Patent cases often involve production of confidential technical information, which is then reviewed by another party’s experts in preparation for trial.  Occasionally, an expert’s work for a competitor causes issues with determining whether the expert can review certain information.  That was the case recently in a EDTX case involving electronic products.  In that case