Some of the most fun you can have in a courthouse is trying to enforce a settlement, or defend against one you didn’t think you had. Unfortunately for legal scholars like you, dear reader, there are not a lot of cases that go to the mat hard enough on this issue of contract interpretation to generate a written opinion with tests and prongs and all that good stuff.
That’s why I was particularly interested to see this recent opinion affirming a magistrate judge’s recommendation that such a motion be denied.
Several months ago I announced the last ruling that dealt with a claim of waiver for failure to assert an improper venue claim timely following TC Heartland. I was premature, because there was still this case, which was stayed due to pending IPR proceedings three months before Heartland was decided. When the stay was lifted several weeks ago, the defendant asserted an improper venue argument, and the plaintiff asserted that the defense had been waived.
Section 101 rulings are always welcome because they show where judges are on specific fact patterns based on the current state of the appellate caselaw. Normally I’d say that the facts are the variable, not the caselaw, but on this subject the first can vary, and the second can … evolve. This week provides another data point on 101 rulings, with an opinion that drops findings into the no/no, no/yes, yes, and “nope” categories.
The national legal media has picked up on the “two is better than one” theme, with an article in Law360 today by Matthew Bultman about the joint claim construction hearing in Marshall last month, noting that there have been other joint hearings recently, including in the Delaware last year when Judges Stark and Burke sat jointly to address issues related to motions to transfer after TC Heartland. The article also mentions other innovative approaches in recent patent hearings, including a “shootout hearing” in Judge Alsup’s court in NDCA, the “one term and you’re out” Markman hearing in Florida, and and “two lawyers sharing a podium” in a recent hearing by CAFC Judge William Bryson. Now remember, these are trained drivers on a professional track. Don’t try this at home.
This is a proposed national class action dealing with annuity contracts. Defendants sought summary judgment as to the plaintiff’s breach of fiduciary duty and breach of contract claims. The Court’s ruling had something for each side.
The Texas Lawbook had a screaming headline last week “New Patent Lawsuits Continue to Decline in Texas”, with an interesting teaser:
“Businesses and individuals filed the fewest patent infringement lawsuits of the decade in the Eastern District of Texas during the first six months of 2018. South and West Texas also witnessed steep drops in patent dispute activity. The federal courts in the Dallas-Fort Worth area, however, saw near-record increases. “
(Emphasis added). Intrigued, I did some digging into recent patent filing trends
using information from Docket Navigator
. While both statements are correct, there’s more to tell, some of it surprising.
Spoiler alert: they’re both granted in part.
But it’s always worth laying out the facts in motions to compel to see what the court found justified relief and what didn’t. In addition, this is the rare order that even mentions the new “proportionality” standard in amended Rule 26.
One of the more recent examples of the venue order is this one from Judge Payne last month which denies a motion seeking a transfer to Delaware . What makes this order different than the run of the mill orders – what Justice Scalia would have called “mine run” for reasons that still baffle legal scholars – is that it’s based on some forum selection clauses in prior patent license agreements, as well as a judicial economy argument due to prior Delaware cases.
And now from the tart side of the menu, we have an order excluding an expert’s testimony as not based on sufficient qualifications only a couple of weeks before trial. No, no leave to submit an additional report was granted – didn’t you hear me describe it as “tart?” If leave had been granted I would have described it as creamy, with a hint of cinnamon and nut in the crust.
Let’s start the week off with a little palate cleanser in the form of an order dealing with a motion to transfer a patent case to the Northern District of California, but with the added frisson of a different procedural context – this one’s an order on a motion to reconsider the Court’s order granting the motion to transfer.