Looking forward to today’s sessions at the 2017 Midwest IP Institute at the outstanding Minnesota CLE Conference Center in Minneapolis. Lots of good speakers on tap, beginning with this morning’s keynote, CAFC Judge Jimmie V. Reyna. I am up on the panel on venue after TC Heartland with Susan Morrison and Aaron Myers, moderated by John Adkisson. John pulled current filings stats for us to discuss, as well as trends we are seeing in practice. I had my first post-In re Cray venue hearing the day before yesterday, so I can relay what I’m seeing as far as briefing and argument as well.
The most recent batch of bimonthly patent case scheduling conferences was held last week in Marshall, and as usual I have a brief rundown of the results.
Motions to “transfer” have always often come in the form of alternative relief, with a motion to dismiss for improper venue followed by an alternative motion to transfer for convenience under Section 1404. This week gave another example of how things sometimes go better on second down than on first.
My calendar knew that I am speaking at three events in the upcoming week on the effect of TC Heartland, but somehow it didn’t see fit to tell me. So let me flag a couple in case you’re in the neighborhood, as well as mention a fourth presentation at the upcoming ILT IP conference in Plano in November:
Midwest IP Institute – Friday, Sept. 29 – 1:15 pm – I am on a panel at the Midwest IP Institute in Minneapolis. As our panel follows CAFC Judge Jimmie Reyna, who was on the panel in In re Cray, we might have more insights than we’re currently aware of.
If you haven’t been to this event, the Minnesota Bar’s CLE conference facilities in the City Center Mall are the best I’ve ever seen. I spoke there a few years back and am really looking forward to returning – with I could be there for both days, but there are claims that must be construed …
EDTX Bench/Bar – Thursday, October 5 – I’ve already posted on this one, but we have a great panel on the effect of TCH (and now In re Cray) to kick off the bench bar Thursday morning. I’ll be moderating a panel consisting of
- Judge Leonard Davis, Fish Richardson;
- Dean Brad Toben, Baylor Law School;
- Ted Stevenson, McKool Smith;
- Wesley Hill, Ward, Smith & Hill, PLLC; and
- Thomas J. Meloro, Willkie, Farr & Gallagher, LLP
We are hard at work making sure we have all the best analysis for attendees.
I’m also presenting on the same topic at the Institute for Law & Technology’s 55th Annual Conference on Intellectual Property Law in Plano, which I am co-chairing with Brian Gaffney of AT&T this year. The conference will be November 13-14, and I’ll post more when – well, when next week is over.
Good article today analyzing current trends in 101 motions, with a “surprising twist” involving the EDTX. (Okay, if you read this weblog, it’s not going to come as a surprise, but work with me here).
Following a jury verdict awarding damages for past infringement, the court and the parties have to work out what the appropriate form of relief for any future infringement will be, taking into account the availability of an injunction and the appropriate rate for any royalties applied to ongoing activity. In a recent opinion an EDTX judge addressed the situation where no injunction was sought, no enhanced damages issue was presented, and the sole issue was what royalty rate should be applied to future activity.
I am headed to Waco for Baylor Law Weekend to celebrate 25 years since I survived Louis Muldrow and Jerry Powell in Practice Court (actually that was last year, but I graduated in ’92). There is a Big O with my name on it at George’s tonight (if you have to ask, never mind), and I need to start early because we are playing OU tomorrow.
Oh yeah, and I get to see the offspring, who takes his first engineering exam today …
This morning the Federal Circuit granted the petition for mandamus in the Cray v. Raytheon case. First of all, congratulations to my cocounsel at Fenwick & West for obtaining that great result for our client Cray.
I have a brief analysis of the opinion and a copy for readers below, with some analysis on the decision’s “physical” analysis that may be of interest.
An issue that’s crept into recent opinions asserting improper venue post TC Heartland is which parties has the burden of showing that venue is not proper – the plaintiff or the defendant? Many cases defer deciding the issue since the outcome would be the same either way under their record, but one recent case did set out its take on the issue.
A recurring issue in patent cases is when a technical expert’s opinion is consistent with the Court’s claims construction, and simply opines whether infringement exists under the construction, and when it is not. A recent case provided three useful examples where an expert did – but in some cases did not – proffer opinions that were consistent with the claim constructions the jury would have to consider, or was otherwise permissible.