Orders granting even part (sometimes especially ones granting only part) of motions to strike expert witnesses are always of interest to practitioners, since they provide guidance on which opinions are in and which are out.
This motion sought to exclude certain portions of a patent defendant’s infringement expert, and was granted, but only in part.
One of the first legal principles I learned about as a law clerk back in the days of MS-DOS and paper slip opinions from the Fifth Circuit was the “first to file” rule.
In Texas Instruments v. Micron, 815 F.Supp. 994 (E.D. Tex. 1993) Judge Hall stayed TI’s patent infringement action in favor of a “first filed” action in Idaho, and in so doing set out the metes and bounds of the doctrine, which also addressing the various transfer factors. He also made the observation that “[a]ll too often, patent infringement suits begin with a battle over where the war is to be fought.” Id. at p. 996, n. 1.
The reason I still have the paper copy is that when I clerked it was a tradition that the clerks kept the paper advance sheets of Judge Hall’s published opinions once the bound copies came in. I still have mine, which as you can tell I keep with Judge’s portrait, biography, and an autographed copy of the 1991 CJRA Plan that was the genesis of the EDTX that we know today. Since there were two clerks, if we both needed the same advance sheet for our collection we’d pick up the one from Texarkana the next time Judge Hall had hearings there, which is when we’d process the stacks of new volumes and advance sheets to keep the law library up to date in the rooms of old barrister bookcases that filled chambers and the law library upstairs (now Judge Craven’s chambers) – and toss boxes upon boxes of obsolete advance sheets.
Earlier this morning Judge Gilstrap applied this rule, similarly staying a later-filed infringement action in favor of an earlier filed declaratory action in South Carolina, citing his predecessor’s opinion in TI v. Micron.
The most recent batch of bimonthly patent case scheduling conferences was held April 24 in Marshall, and as usual I have a brief rundown of the results compared to the last conference at the beginning of February.
I am a little behind compiling the results since I was in trial with Judge Schroeder in Texarkana when the conferences took place, but the good news is that lets us see what’s happened in these cases in the now 36 days since then.
Marshall jurors persist in rendering verdicts on days I’m out of town. But I’m here now, and the verdict is a little more complex than May 11’s simple noninfringement one.
A Marshall jury in Judge Gilstrap’s court rendered a verdict for defendant HTC last Friday. The jury found that none of the asserted claims were infringed, and went home. The verdict is below.
A recent EDTX decision staying a case noted what the moving party needed to stipulate to to obtain the stay, as well as the fact that the PTO would be using the Phillips standard in reviewing the claims.
After a four-day trial in December, a Marshall jury in Judge Roy Payne’s court found that Defendant TCL willfully infringed claims 1 and 5 of United States Patent No. 7,149,510 asserted by Plaintiff Ericsson by selling phones and devices equipped with the Google Android operating system, and the jury awarded $75 million as a lump sum royalty.
The court previously ordered a new trial on damages after finding Ericsson’s damages theory unreliable, but last Thursday the Court reconsidered that order, reinstated the jury’s verdict in full, and resolved all other remaining disputes, i.e. TCL’s motions for judgment as a matter of law, and Ericsson’s motions for enhanced damages and attorney’s fees.
Seems like just last week that I summarized where we were on local decisions after the Federal Circuit held that some Section 101 issues were questions of fact. Oh wait, it was just last week. Well, we have another one – this time within an order denying a Section 101 motion at the pretrial stage, this time explicitly concluding that there were issues of fact that precluded dismissal as to two of the three asserted patents.
Yesterday’s Senate Judiciary committee hearing presided over by Sen. Ted Cruz of Texas included the remaining two nominations for the Eastern District of Texas, J. Campbell Barker and Jeremy Kernodle. All three nominees for the four vacancies in the EDTX have had their hearings now. I’ll post as information becomes available on committee and floor votes.
Motions to transfer alleging inconvenience aren’t as common as they were before TC Heartland, but you still see them from time to time. In this case, Judge Mitchell concluded that the relevant factors made the proposed transferee forum in California “clearly more convenient.