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

Ants & Rubber Tree Plants – Motions for Partial Summary Judgment of Noninfringement

November 29, 2018 msmithCommentary, Summary Judgment

My mother used to sing the song High Hopes – you know, the one about the ant trying to move the rubber tree plant? Noninfringement summary judgment motions always remind me of that song because it’s often difficult to get those across the finish lines when the standard precludes granting the motion if there are genuine disputes of material fact. This order shows how parties on both sides address the all-important factual dispute question for these motions.

The Heartbreak of Failed Redactions

November 28, 2018 msmithCommentary

Ever think about asking the Court to redact parts of one of its orders? You might want to read this recent order from an Eastern District of Texas court, which provides guidance on how (and when) to protect confidential information in court proceedings. And no, ELMO is not your friend here.

Marshall/Tyler patent scheduling conferences – November 19, 2018; Time to Trial Analysis

November 20, 2018 msmithStatus Conference Reports

It’s been two months since the September scheduling conferences, so we were back across the street yesterday for scheduling conferences in patent cases, followed by scheduling conferences in … everything else. The cases discussed below are for Judge Gilstrap’s share of the Marshall and Tyler patent docket. I also included some observations on how cases are scheduled.

PLI Advanced Patent Litigation presentation – social media in jury selection

November 16, 2018November 16, 2018 msmithPapers/Seminar Presentations

Had a great time yesterday with Suann Ingle presenting on the use of social media in jury selection as the snow began to fall in NYC. I was the only person who seemed to enjoy it last night.

Which changed this morning when my flight back to Texas got cancelled, meaning I’ll spend my 22nd anniversary hanging out in LaGuardia, looking out the blue, blue skies – largely empty of airplanes.

But I have all my favorite toys with me, so it’s actually not a bad place to get work done. And as we were planning to spend the weekend to Dallas anyway, I won’t even have to do the 2 1/2 hour extension to Marshall tonight.

Tom Irving on Inequitable Conduct and Unclean Hands

November 13, 2018 msmithCommentary, Inequitable Conduct

ILT learned long ago that if we schedule Tom Irving as the last speaker – nobody leaves. So I am, once again, thoroughly enjoying having Tom yell at the audience about the ethical pitfalls inherent in patent prosecution.

“Pruning” Type Motions to Dismiss

November 13, 2018November 29, 2018 msmithJudge Amos L. Mazzant III, Motions to Dismiss, Sherman

One of the commonly cited uses for a motion to dismiss to to identify and cut out of a case claims or defenses which don’t have support, either in the law or in the facts of the case. Such motions serve the useful purpose of pruning cases back to what’s actually at issue, although I have an editorial comment on that below.

But as with any pruning job, there’s a line between cutting off the dead wood and cutting out causes of action that are still at least potentially live. This recent EDTX case illustrates where this line is with respect to pleaded claims.

Patent Lawyer Flash Mob

November 13, 2018 msmithCommentary

There was a priceless moment this morning at the ILT IP seminar in Plano. The Dallas Bar Association’s Young Lawyers Division was presenting a Jeopardy! Trivia game on IP trivia, but unlike the one I did last month, theirs was live and the different rows were competing against each other.

One of the questions asked a very technical question about a rule in IP, and no one got it precisely right. The presenter put up the answer, which was lengthy and detailed, and the entire room of patent lawyers, seemingly as one, went into claim drafting mode and concluded that the answer was in fact correctly worded, and explained to its collective self why.

It then went on to the next question as if nothing had happened.

Summary Judgment of Indefiniteness

November 12, 2018November 29, 2018 msmithIndefiniteness, Judge J. Rodney Gilstrap, Marshall

This case is a little unusual in that the day before the Markman hearing the Federal Circuit affirmed another district court’s grant of summary judgment of indefiniteness based on construction of a single word. The Court asked for additional briefing, and after considering it, issued the attached opinion.

Anti-SLAPP Presentation Interrupts Trade Secrets Presentation

November 12, 2018 msmithTrade Secrets

Just witnessed one of the more brilliant presentation tactics I’ve ever seen. Paul Storm was just up talking about a case involving trade secrets, and as soon as he mentioned a particular party, his co-panelist Mike Karson stopped him, and took over the podium to begin explaining the effect that an Anti-SLAPP motion could have interrupting a case (as he did Paul’s presentation). Brilliant. Just brilliant.

ILT IP Law Conference; PLI Advanced Patent Litigation Seminar; 22nd Anniversary

November 12, 2018November 12, 2018 msmithCommentary

It’s one of those weeks when I use all of my packing pouches swapping out clothes as I go from city to city attending and presenting at IP seminars, and fortunately getting in a little family time as well.

I’m spending the first two days in Plano at the Institute for Law & Technology’s 56th Annual Conference on Intellectual Property Law. I cochaired the conference the past two years so it’s a pleasure this year to sit back and enjoy what is one of the preeminent IP conferences in the country. EDTX judges Rodney Gilstrap and Amos Mazzant will be joined by new WDTX-Waco Judge Alan Albright for the lunch judges panel later today, and I’m looking forward to that.

Then it’s off to New York to speak again this year at
PLI’s Advanced Patent Litigation course on ethical issues in jury selection, focusing on the challenges raised by social media with Suann Ingle.

The reward for a busy week is a couple of days back in Dallas with Jamie celebrating our 22nd anniversary Friday by playing foodie all weekend. As you can tell in the picture with our Baylor Bear from last year, she’s aged a bit better than me.