Month: April 2017

Attorney Prohibited From Filing New Patent Cases for 120 Days as Rule 11 Sanction

msmithJudge J. Rodney Gilstrap, Marshall, Patent Litigation

I posted several days ago on the show cause order Judge Gilstrap issued with respect to an attorney’s “systematic carelessness” in filings on behalf of the plaintiff in the Ruby Sands litigation.  The full post is available to subscribers here. In an order memorializing the rulings at the hearing, Judge Gilstrap suspended the attorney’s ability to file new cases for 120 days, with the following language:

“Mr. Zimmerman’s repeated acts of negligence in his practice before this Court—as further expounded upon in the Court’s Order to Show Cause and on the record at the hearing – compel the Court to conclude that some targeted action should be taken to prevent further lapses in adequate compliance with the Federal Rules of Civil Procedure, the Local Rules of Practice and the direct instructions of the Court. Such is necessary to support and uphold the integrity of this Court. While Mr. Zimmerman admirably accepted fault at the hearing and made no excuses for his conduct, the fact remains that the instances which precipitated the Court’s Order to Show Cause nonetheless occurred and should be addressed.”

Accordingly, pursuant to Rule 11 of the Federal Rules of Civil Procedure the Court ordered that Mr. Zimmerman be prohibited from filing any new cases within the Eastern District of Texas for 120 days from the date of the hearing on April 26, 2017. The prohibition expires automatically, and does not affect Mr. Zimmerman’s ability to represent clients in cases currently pending.

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Verdict in antitrust case

msmithJudge Robert W. Schroeder III, Marshall, Verdicts

The last of last week’s Marshall juries came back this week with a $44 million verdict in the antitrust case in Judge Trey Schroeder’s court.  The case involved claims by plaintiffs who serviced or refurbished GE anesthesia machines, and as suits a seven day jury trial involved a 32 page verdict, analyzed below.

Congratulations again to plaintiff’s local counsel, and, uh, well, again, there’s no one local to send sympathies to on the losing side.

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Uropep v. Lilly verdict

msmithCommentary, Judge William Bryson (CAFC), Marshall, Verdicts

I am a few days late getting Friday’s verdict in Uropep v. Lilly by a Marshall jury in visiting Federal Circuit Judge Bryson’s court up, but I have a good excuse – we were chaperoning our 8th grade twins’ class trip to DC where they had their picture taken outside the Federal Circuit’s building (hey, it’s technically true).

The jury found induced infringement, that none of the invalidity claims were proved by clear and convincing evidence, and set damages at $20 million.  (More gratuitous shots of my kids to illustrate only remotely related legal concepts to follow).

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Second jury (employment discrimination) is back

msmithCommentary, Judge J. Rodney Gilstrap, Marshall, Verdicts

A Marshall jury in Judge Gilstrap’s temporary courtroom in the historic county courthouse returned a verdict in favor of a Kilgore mail carrier yesterday in a civil rights employment case, determining that she had been fired for reporting that a black supervisor was mistreating the white female employees.  The trial began on Wednesday and finished yesterday.  The jury awarded $250,000 in damages for mental and emotional distress. As expected, that’s two down, with the antitrust case before Judge Schroeder resuming next week.

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First jury (patent infringement) is back

msmithJudge William Bryson (CAFC), Marshall, Verdicts

The Marshall cases in trial before juries this week are actually an antitrust, an employment, and a patent case.  The patent case before Judge Bryson came back with a verdict for the plaintiff of $20 million Friday evening, breaking the 3-3 tie we’ve had thus far this year in patent verdicts.  Congratulations to the plaintiff’s local counsel, and … well defendant didn’t have any local counsel I can send out sympathies to. The case is one that I’ve posted on a couple of times, involving 

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Triple-tracking jury trials

msmithCommentary, Marshall

“Time is the quality of nature that keeps things from happening all at once.  Lately it doesn’t seem to be working.” 

Anonymous.

It’s a busy week in federal court practice in Marshall this week, with Judge Gilstrap, visiting Judge Schroeder from Texarkana and visiting Judge Bill Bryson from the Federal Circuit all conducting jury trials, forcing Judge Payne having to run up to Texarkana yesterday to find an available courtroom for a bench trial.  Not all are patent cases – there’s at least an antitrust in there somewhere, as well as a trademark dispute.

When we have three jury trials going on, one of the judges decamps across the street to the historic 1901 Harrison County Courthouse,
which the county makes available for overflow trials (I had three patent trials in it summer of 2012, and it’s an incredible space to get to work in).  

As the photos show, it’s obviously primitive accommodations, but we make do.

In addition, the timing worked out for all the judges to make last night’s meeting of the T. John Ward Inn of Court at our usual location, the Country Tavern outside Kilgore, where we heard from former U.S. attorney Malcolm Bales (who took the picture at left of the somewhat perplexed patent lawyers listening to his talk about these “criminal” cases they’ve heard about on TV).  Great stories and insights on his 29 years at the Department of Justice.

But the high point of the evening for me was when Judge Bryson was quoted as having analogized the job of a trial judge to fighting your way through a jungle filled with terrifying beasts, and his day job as an appellate judge as being better analogized to fighting your way through a natural history museum.

The bench trial finished yesterday, two of the jury trials should finish today, and Judge Schroeder’s is expected to continue into next week.

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Clash of the 101 Motions: Motion to Dismiss Claims Versus Motion for Summary Judgment as to 101 Defense

msmithJudge J. Rodney Gilstrap, Marshall, Unpatentable - 35 USC 101

Although most 101 defenses are raised via motions to dismiss under 12(b)(6), a few are brought under 12(c), and more than a few are either filed in or converted to the context of summary judgment.  But this case raises an interesting twist with the defendant seeking dismissal on 12(b)(6) grounds and the plaintiff seeking summary judgment that the 101 defense is without merit.  So let’s see how that worked out for them.

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Whither High-Volume Plaintiffs? Significance of 2017 1Q Statistics for EDTX at a Glance

msmithCommentary

I was studying the underlying charts for Lex Machina’s 2017 1Q report of filing statistics, and found one chart that I think summarizes the “new normal” better than any other – the 2011-present breakdown of filings by high volume/low volume filers.

High volume filings spike in EDTX almost gone

As the top chart notes, the spike in high volume filings in the EDTX that has been prominent since enactment of the AIA has now disappeared almost entirely, with filings down dramatically in Q1.

Why are high volume filers leaving EDTX?

Interestingly, high volume filings are essentially flat elsewhere, which raises the question (if you hadn’t been reading this weblog) why high volume filings are down locally, but not nationally.  Look at the filing trends after the EDTX opinions awarding almost $400,000 in Section 285 fees in eDekka in January of 2016 and over $500,000 in Iris Connex in January of 2017.  Any questions?

Low volume plaintiffs up overall in EDTX & Delaware

Interestingly, low-volume plaintiffs are down locally this quarter, but still up overall over the last couple of years, which is similar to what Delaware is seeing – low volume plaintiffs appear to be seeking both districts out at the expense of other districts.  I tend to believe that this is because of the courts’ expertise in the subject matter, or at least because of the predictability of the EDTX and DDel districts’ judges’ rulings on recurring issues.

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