Motion to Dismiss for Improper Venue Granted

This is a patent infringement case filed last fall.  By February of this year, only one defendant was left.  That defendant challenged venue in its answer, and five days after the scheduling conference TC Heartland came out.  The remaining defendant filed a motion to dismiss for improper venue shortly afterwards.  Judge Love’s opinion granting the motion addresses a the proffered waiver argument, as well as the plaintiff’s claim that the motion should be denied because multidistrict litigation was “imminent.”

Whale fall re: JMOL on willful infringement, jury instructions & interest calculations

Earlier this year a Marshall jury in visiting CAFC Judge Bill Bryson’s court rendered a $20 million verdict in favor of the plaintiff against defendant Eli Lilly.  Several weeks ago Judge Bryson followed up with an order explaining his reasons for several decisions during trial.

Judge Bryson’s order is an example of what I referred to in my talk about JMOLs week before last at Horseshoe Bay as a “whale fall” – the sort of order that can take weeks to fully digest, but if you’re interested in the subject of getting a JMOL on a plaintiff’s claims of willful infringement or on when certain jury instructions are appropriate or how prejudgment interest is calculated it’s worth it.

Our story begins with the defense counsel rising at trial to assert a JMOL as to the plaintiff’s claim of willful infringement…

TexasBarCLE Advanced Patent Litigation course day 1

Pete Peterson has kicked us off at the Advanced Patent seminar with his Federal Circuit and PTAB update.  Next up is Michael Hawes on venue scope after TC Heartland. Lots of great topics today, concluding with litigation tactics at 4, and boat cruise at 5. Update: enjoyed presentations on international enforcement, and discovery strategies, and right now DJ Healey is scaring the hell out of me about patent pools in the context of antitrust law intersecting with patent law.  Next up is navigating state  fraudulent demand letter laws,  and trial strategies and litigation tactics, after which we go get on a boat for a reception/cruise. Meanwhile, C&P better be reading their books for school, and not hanging out at the resort arcade…

ABOTA releases statement on attacks on Judge Gilstrap

I just received the attached announcement from the American Board of Trial Advocates (ABOTA).  A copy of the press release can be obtained here:

ABOTA responds to criticism of Judge Gilstrap

ABOTA defends Judge Rodney Gilstrap from attacks by House Chairman

Constitutional separation of powers requires judges to decide cases impartially without political pressure

DALLAS (July 19, 2017) — The American Board of Trial Advocates, a non-partisan national association of experienced trial lawyers and judges, opposes the direct personal attacks made by Rep. Darrell Issa, Chairman of the Intellectual Property Subcommittee of the House Judiciary Committee, about U.S. District Judge J. Rodney Gilstrap. ABOTA is dedicated to the preservation of a fair and impartial judiciary and the right to trial by jury. State and federal judges are accountable to the law, not to special interests or political pressure.

Recently, Rep. Issa criticized a recent ruling of Judge Gilstrap, District Judge for the United States Court of the Eastern District of Texas, calling his conduct “reprehensible” and insinuating the decision was motivated by a personal bias to local community interests rather than the law. Regrettably, Rep. Issa’s criticism extended beyond a challenge of the legal precedent to a personal attack on Judge Gilstrap and his integrity as a jurist.

“One of our primary purposes is the preservation of the independence of the judiciary,” said F. Dulin Kelly, ABOTA National President. “The judicial canons preclude judges from responding to public criticism of their rulings and when a member of the judiciary has been publicly criticized, our ABOTA protocol requires us to evaluate the criticism and determine whether a response on behalf of the judge or court is appropriate.”

ABOTA is an organization consisting of an equal balance of plaintiff and defense lawyers. The Texas statewide chapter, known as TEX-ABOTA, is made up of 16 local chapters and serves as a consolidated voice of more than 1,300 members. Ann Hennis, TEX-ABOTA President, said the statements about Judge Gilstrap are contrary to the organization’s ideals of disagreeing with respect, seeking a common ground, and allegiance to the Constitution of the United States.

Mr. Kelly added that with members of all political persuasions and both sides of the bar, ABOTA and TEX-ABOTA strongly decry this effort to politicize and denigrate any individual jurist.
In a formal statement posted on, Mr. Kelly said:

“We reject the attempt to denounce our judges into foregoing their obligation to use their best judgment, devoid of influence, in an appropriate ruling. Whether you agree with isolated decisions or do not, political influence on our Courts is to be opposed.
When our elected representatives choose to issue personal attacks and name calling on any individual judge, demeaning the personal integrity of the jurist, the effect is to undermine the very principles of our liberty and government. Politics have no place in our courts. We believe judges should be selected in a manner that assures well-trained, qualified, experienced, independent and neutral judges. Political attacks that impugn a judge’s character have no legitimate role in the legislative framework. It weakens a critical, co-equal branch of our constitutional government. If we are to remain a nation of laws, we must have independent and neutral judges who will apply the law fairly and impartially. To utilize a personal attack against an individual jurist for the purpose of a political agenda diminishes the authority of our system of justice.”

Preserving the quality and independence of the judiciary has been a hallmark of ABOTA’s efforts for decades, and the organization believes that confidence in the nation’s judicial system is profoundly important. More on this topic can be found in the ABOTA white paper, “Preserving a Fair, Impartial and Independent Judiciary,” available at

About the American Board of Trial Advocates

Founded in 1958, ABOTA is a national association of experienced trial lawyers and judges. ABOTA and its members are dedicated to the preservation and promotion of the civil jury trial right provided by the Seventh Amendment to the U.S. Constitution. ABOTA membership consists of more than 7,600 lawyers — equally balanced between plaintiff and defense — and judges spread among 97 chapters in all 50 states and the District of Columbia.


“Post-Trial Motion Practice” – TexasBarCLE Advanced Patent Litigation seminar

My second paper this week is one I’m particularly excited about, and that is “Post-Trial Motion Practice” at the TexasBarCLE Advanced Patent Litigation seminar in Horseshoe Bay.  The paper and – more importantly – the slides are attached for subscribers, and the following cases I’ll be discussing are attached below for attendees. (You don’t need them to follow the presentation, but you may want to refer to them later).

i4i Ltd Partnership v Microsoft Corp

DDR – JMOL order




The seminar starts tomorrow morning and extends through Friday evening at a pretty posh resort in the Texas Hill Country, and includes a waterfront reception and cruise tomorrow evening jointly sponsored by the Association of Women Lawyers of the Eastern District of Texas and the Intellectual Property Law Section of the State Bar of Texas.  The Eastern District of Texas blog is also proud to be a sponsor of the seminar, which is a traditional meeting place for Texas layers involved in patent litigation.  

My presentation is the second to last of the seminar at 2:45 pm Friday, but the good news is that there’s something even more thrilling to lawyers after me, Attorneys Fees by Amanda Abraham of the Roth Law Firm also from Marshall.  (The sad thing is that I’m not being facetious – attorneys fees really is a thrilling topic to those of us that will be there, and given recent caselaw, it appears we’ll be ending on a high note).

Those to whom it will not be thrilling are our twins Collin and Parker who are being dragged to the seminar involuntarily, just so I can take them to the nearby National Museum of the Pacific War in Fredericksburg, Texas Saturday morning.  They are, sadly, used to this sort of bull, being forced to spend a lot of their family time in museums with Dad, most recently Omaha Beach at Normandy last month.  (They’ll appreciate it later, I’m sure).

Again, subscribers click through for the paper (including a sample “JMOL worksheet”) and the slides.

“Jurisdiction and Venue – Where Does the Case Belong?” – TexasBarCLE Advanced Civil Trial seminar

her things, venue, coauthored with David Lopez of Pulman, Cappucio Pullen Benson & Jones in San Antonio. The paper deals with the relative jurisdiction of state and federal courts, as well as the venue questions that come into play once you determine which court you want to – or can – file in.

While David and I initially planned on co-presenting the paper at as many of the three sites as possible, schedules intervened, as they often do on these three-site presentations.  The paper was supposed to be presented this morning in San Antonio at the Hyatt Regency Hill Country resort, but we swapped dates and times to help out another speaker so David will be presenting Friday morning at 10 am, when I already have to be in Horseshoe Bay to present a different paper (more on that later) at the Advanced Patent Litigation seminar.

The next presentation is in Dallas on August 16, but had to be rescheduled due to a pretrial conference.  I would tell you that because that case was stayed last night we’ll be back on then, but as that’s the day we take our oldest off to start college at Baylor and I have to drive my wife and I home after we leave our baby, I’m pretty sure it’ll get moved to the 17th or 18th. (I can tell the State Bar that’s a conflict – I can’t tell a federal judge that.  My wife disagrees, but fortunately the point has become moot).  The third and final presentation will be in Houston in October.

Subscribers click through for a copy of the paper, and when David gets me the slides I’ll add those as well.

2017 EDTX patent verdict analysis to date

So far this year, EDTX has eleven patent verdicts.  There are five plaintiff and five defendant wins, with four of the five defense verdicts being complete wins, i.e. no claims infringed and all claims invalid. However one additional case had one claim infringed and valid and the other claim not infringed and invalid – and the second was the claim that had the significant damages, so I’m considering that as a wash, for an overall score of 5.5 wins each.  That the second most common verdict so far this year is a complete defense win on infringement and invalidity isn’t all that unusual – in 2013 it ended the year as the most common trial outcome. For comparison purposes, the composite percentage win rate for EDTX from 2008-2016 was 49.3% (the national win rate for the same period is 62.25%; Delaware was 55.14% and N.D. Cal. was 38.76% for the same period). Damage awards for the year thus far ranged from $4.1 million to $20 million, with the median around $8.3 million.  I don’t have a 2008-2016 stat on median damages awards, but the 1/14-6/16 EDTX median was $6.97 million, compared to national median of $8.09; Delaware was $15.5 million and and ND Cal. was $8.3 million. So a pretty normal year thus far as far as verdicts.

Agreed Transfers Post TC Heartland- Is It Transfer or Dismissal?

What gets attention since TCH is the effect of the decision on new patent case filings in the EDTX, and depending on which week you check filings, they have decreased by around half as plaintiffs voluntarily decide that they don’t have the venue facts to file here and choose to file elsewhere.  What gets less attention is the effect of the decision on pending cases where plaintiffs come to the same conclusion.

These decisions show how those decisions come about, and what the Court does when the parties agree that the plaintiff needs its ticket punched, but can’t decide whether to dismiss or transfer.