We have another data point on whether a prevailing plaintiff gets enhanced damages, as well as whether the case is “exceptional” for purposes of attorneys fees.
A couple of Daubert rulings today put me in mind of Ghostbusters. Remember the Gatekeeper and the Keymaster? Well, the outcome of these “gatekeeper” motions may or may not have been as catastrophic to the parties in these cases – it’s usually difficult to tell with the part in/ part out rulings – but as usual they do provide some insight into why some opinions are ruled in or out, and some useful guidance on which challenges are worth making and which aren’t..
The answer appears to be more than three. Just in case others are having the same issue I posted about the other day, the EDTX IT staff was able to identify the problem I was having with pdfs, and I wanted to post on what they found out. It’s not an issue with the court or with the ECF system – as my wife and assistant could have told me, it’s user error. If you are using Chrome as your browser, and save pdfs (can be from ECF or a website – doesn’t matter) by using right click and “print to pdf”, apparently the newer version of something has decided to not save a fully functional version, but is instead “flattening” the resulting pdfs so that they can no longer be searched, highlighted, or copied from. The solution is to use the “download” icon at top right – when the document is downloaded as a pdf it retains full functionality.
With apologies to Dickens, that’s what a motion for exceptional case status under 35 USC 285 is, and we have another interesting EDTX decision on which facts will get you more soup. (Or a beating).
Paradoxically, I’m going to celebrate receiving my second patent this morning (9,955,784 is my new favorite number) with analysis of what’s happening locally regarding the patentable subject matter defense under Section 101 following the Federal Circuit’s opinion in Aatrix Software, Inc. v. Green Shades Software, Inc., 882 F.3d 1121 (Fed. Cir. 2018).
I have had a few requests for some attention to that specific issue, and wanted to let people know what I’ve seen so far locally.
It’s a sad day with Jason Witten retiring from our beloved Cowboys, so I decided I had to wear the jersey to work. Which made for interesting sidewalk conversation when I asked a herd of lawyers headed past my office how they were expecting their hearing with Judge Gilstrap to go, where they were on the docket, and which pretrial motions they had rulings on already. (This time next week Law.com will probably be running a story about how homeless people in Marshall quiz visiting lawyers about federal civil procedure).
But life goes on … as it did for the parties in this case in which Judge Mazzant entered judgment for $24 million and change following a jury verdict last fall in which the jury found that there was no patent infringement but that there was a breach of contract, specifically a confidentiality agreement, and assessed $15 million in damages.
Who attends mediation for a client is a decision that has to take into account several requirements. There are the local rules requiring mediation, the Court’s orders requiring mediation, either in general, specific to a case or really really specific to a case, i.e. Ms. X is required to attend, and perhaps a mediator’s suggestions or requirements as far as who should be there. While the requirements regarding attendance of clients have always been fairly concrete and contemplate usually a single key person with a certain level of authority, the requirements regarding counsel have not always been beyond the attendance of lead counsel, but a major recent development changes that in a lot of cases.
Well, this is an interesting fact situation. A party’s expert experienced a medical event and it sought to sub in a replacement for trial. At the hearing on the motion the Court determined that it needed more information on whether a replacement was needed. Its solution was set forth in a sua sponte order.
Motions to strike infringement contentions and motions to compel discovery make up a significant part of pretrial motion practice in patent cases. This recent order following a hearing provides guidance on when such motions are denied.