October 2018 – Michael C. Smith's Eastern District of Texas Blog

Means Plus Function Terms Indefinite for Lack of Corresponding Structure

October 31, 2018November 2, 2018 msmithClaim Construction, Judge J. Rodney Gilstrap, Marshall

Reading Markman orders is often like watching soccer while being an American. Only rarely does someone actually score a goal. This Markman is a good example. Dozens of pages of solid analysis, but it’s only at the top of p. 32 and again a few pages later that goals sneak up on you – when the Court noted that these were means plus function terms, and the lack of corresponding structure rendered the three terms indefinite.

Improper Venue Motion Denied, But Points for Creativity (Deducted, But Still)

October 31, 2018November 2, 2018 msmithJudge J. Rodney Gilstrap, Marshall, Venue

This case has an interesting procedural history with respect to venue. Five months after TC Heartland the defendant filed a Section 1404 motion, but didn’t challenge venue as improper. That motion was denied, as was the mandamus petition challenging it. Ten months after the mandamus denial, after a change in lead counsel, the defendant filed a motion asserting improper venue. The order on that motion addresses several issues, including venue over foreign defendants, the geographic jurisdiction of the court, creative uses of the marking statute, and even more creative arguments regarding venue waiver.

Protective Order Violation – Fees Awarded

October 31, 2018November 2, 2018 msmithDiscovery, Judge J. Rodney Gilstrap, Marshall

Protective orders sometimes have provisions allowing only certain in house persons to see some types of confidential information. When these provisions aren’t followed, bad things can happen, as the allegations in this case show.

New Longest-Tenured EDTX Local Rules Chair

October 30, 2018October 30, 2018 msmithCourt News

I’d like to congratulate Wes Hill for becoming the longest-tenured local rules chair in EDTX history, breaking my record this month of 9 years by beginning his tenth at the conclusion of the bench/bar. I served as chair from 2000-2009 when Wes replaced me, with 2009-2010 as my chair emeritus year, colloquially referred to as either the “victory lap” or “free at last” year, depending on who you ask.

Wes, here’s to nine more.

Hotline calls

October 30, 2018 msmithDiscovery, Judge Caroline Craven, Marshall

One of the unique characteristics of the Eastern District’s 1991 CJRA Plan was the creation of a discovery hotline which allows litigants to get a ruling from a judge in real time on a discovery dispute. This latest ruling arises, as most do, from a dispute over whether a specific set of questions during a deposition was admissible.

EDTX claim constructions in SEVEN v. Google out; comparison to NDTX constructions

October 30, 2018October 30, 2018 msmithClaim Construction, Judge J. Rodney Gilstrap, Marshall

I posted the other day that Judge Lynn’s constructions from the recent joint claim construction hearing in SEVEN v. ZTE were out. Now the constructions for the EDTX cases by SEVEN against Google & Samsung by Judge Gilstrap are out as well. This feels just like checking your lottery numbers, doesn’t it – will the constructions match?

Rulings on motions in limine in patent cases

October 29, 2018 msmithJudge Robert W. Schroeder III, Tyler

I finished reading these rulings on the parties’ motions in limine in a recent patent case this afternoon and decided that there was nothing unusual enough in them to justify a post analyzing them, but am posting the order anyway simply to show examples of common rulings in response to common issues in patent cases. These are always worth reviewing so that when a similar issue comes up, you have an idea what the ruling is likely to be if the issue is disputed, including the specific language that might be appropriate for an agreed limine.

Effect of Late Opposition to Motion to Strike Expert Declaration

October 29, 2018 msmithClaim Construction, Judge J. Rodney Gilstrap, Marshall

The defendant in this case moved to strike a declaration the plaintiff submitted in support of its claim construction positions and asked for expedited briefing. The Court expedited the briefing, and the plaintiff did not respond by the time indicated. Three things happened next.

EDTX on False Claims Act Discovery

October 29, 2018 msmithCommentary, False Claims Act, Judge Amos L. Mazzant III, Sherman

It’s FCA Monday again, and this week’s case deals with the discoverability of certain information relating to damages in a False Claims Act case. As with many FCA cases, this one arises out of health care related payments which resulted in Medicare and Medicaid reimbursements by the government. The specific requests here were to the government, and asked for information regarding the payment of similar claims after the government learned of the claimed violation in this case.

Save the Dates – 2019 EDTX Bench/Bar

October 26, 2018 msmithCourt News

The dates for the 2019 EDTX Bench Bar Conference have now been set and are: September 23-25, 2019 in Plano, Texas. Yes, these dates cover a Monday, Tuesday and Wednesday. Please mark your calendars accordingly. Rumors that the dates were selected to permit a launch window for the second annual Texas dinner to be held on the International Space Station are completely unfounded. (It doesn’t have adequate seating anyway). But I can’t wait to see what the planning committee does to follow dinner at AT&T Stadium. No pressure or anything.