More Proportionality; Motion to Compel Sales Information Granted in Part

This is an order resolving a motion to compel on damages issues in a patent case.  At issue was whether the Defendants, a parent and a subsidiary, were required to provide financial data on infringing sales made by the parent to entities other than the named sub, and whether Defendants were required to provide financial data for certain additional products.  The Court granted one but denied the other, citing the “p” word and providing a useful list of things not to do to preserve a claim for discovery.

SDNY Patent Docket Control Order Adopts EDTX Rules

Thanks to Alan Ratliff for flagging this docket control order from the Southern District of New York from earlier this year which adopted (pursuant to the parties’ joint proposal) the Eastern District of Texas’ patent local rules for infringement and invalidity contentions and claim construction disclosures. The only fly in the ointment is that I wonder if the parties now know that P.R. 4-3 is being substantively amended effective December 1, six weeks before the relevant due date in the case?

A Streetcar Named ….

It often happens when walking with a visiting lawyer or client to or from the federal courthouse in Marshall that I get a funny look when we cross the bricked-up tracks on the north side of the old courthouse.  “Why are there train tracks in the middle of the square?” I’ll get asked.  I explain that those aren’t train tracks.  They’re from the old streetcars that used to run from the Marshall train station south the few blocks to the square. At the courthouse they split and from there went out half a dozen blocks or so to the neighborhoods east and west of downtown.
The problem is that until today I’ve never been able to find a decent photo of the trolley cars.  But here they are in a “History From Our Files” from the Marshall paper this morning, shown looking north from the steps of the then-new county courthouse shortly after 1900.
The “telephone” building on the right is now Telegraph Park, but was still there when I was little – my grandmother clipped poodles in it.  And the block of buildings on the left were razed in the mid-70s.  The reason I know that is that my mother took me out of school to watch them being torn down.  Why that was a “take Michael out of school to watch” event I never understood. But then, it was also a family event to watch concrete being poured back then – my initials are still in the sidewalk next to my office from when the concrete was patched in 1971 in front of my grandfather’s store, and he insisted she bring me out so I could put my initials in.
But immediately behind those buildings under the arrow is what was then the Marshall “opera house” which I’ve written on previously . “Opera house” was the term used in rural Texas for the places where visiting troupes of actors, singers, musicians and other entertainers played at stops up and down the railroad lines.  For example the Sherman “opera house” is now our firm’s offices in Sherman, as the above post notes.  It looks a bit different now, as shown at the dedication of the Sherman courthouse for Judge Brown a few years back.  Candidly, I preferred its original appearance, shown at right when it was a third floor and two towers taller.
But I digress.  Patent practitioners will recognize the building being pointed out as Pazzeria by Pietro – which was formerly the Blue Frog restaurant.

Feed Me, Seymour

Did you know there was a Texas Business Opportunities Act?  I did not know that.  But here it is, one of the pleaded causes of action in a case brought by unhappy franchisees of a non-surgical weight loss business.  Which brings up another thing I’d never heard of before – a Sculpt Pod.  Oh sure, I saw it in Little Shop of Horrors but as a legit weight loss device? 

All of which, of course, cannot help but generate a motion to remand this very interesting set of facts and causes of action to back to state court, with some interesting observations by the Court on when a claim arises under federal law.

Weblog update

I had a chance over the weekend to do some maintenance on the “back office” side of the weblog, and subscribers should see a few changes. I’ve gotten some bugs worked out of the renewal dates for individual and law firm/practice section subscribers, which in some cases weren’t being handled correctly.  In the course of doing that I discovered that some of the daily email subscribers had an expiration date, which wasn’t intended, so I’m correcting that as well.

The signup page here is where you can add and correct your subscription information.  If you’re renewing, the system will recognize you if you use the same email and password – which will save you from having to create a new account, which I know a few people have done.  Just email me if you need your information or have any other problems.

And as always, if you’re interested in hearing about particular types of cases, let me know.

Motion to Dismiss False Claims Act Complaint Granted in Part

This Monday’s False Claims Act case is a report & recommendation by a magistrate judge, adopted by the district judge, which addressed a motion to dismiss relator’s claims under the FCA’s first to file rule, and motions to dismiss under FRCP 12(b)(6) and FRCP 9, which implicated both normal and heightened standards of pleadings.  No objections to the report were filed, thus the district court’s review was limited to plain error / manifest injustice, and it did not find any.