I had a question come up today about how the EDTX consolidates patent cases for pretrial proceedings, so I wanted to post an exemplar order and go over some of the provisions in it. Today’s historical reference is our building’s mascot, the 122 year old metal wagon wheel hub sign that’s stood outside our offices since 1897. It came down last fall for the second time in that span for some refurbishment, and we’re glad to have it back up today in front of the historical marker memorializing the building’s history.
This order excluding a technical expert witness in a patent case is an interesting one because it asserts several grounds, only some of which will give lawyers nightmares.
I have posted many times on the Tinnus v. Telebrands litigation, which involves water balloon patents. Another order is now out, this time involving postverdict motions including recovery of enhanced damages and attorneys fees for “exceptional” case status, as well as and entry of a permanent injunction. It is one readers will want to study, as it contains some actions that are extraordinary – even by patent litigation standards. When a court’s order uses the term “flagrantly” multiple times, you know things are about to get very interesting. There is much to be learned here, so let’s begin …
In the early 1920’s my grandfather Pop Demmer was co-owner of a car parts store at 608 Franklin Avenue in his home town of Waco, Texas. It was a few blocks west of his dad’s grain store in the 600 block of Webster, and a few blocks east of his (I assume) lady friend, who was one of Hugh Kleypas’ innumerable daughters who lived over on 10th. It would certainly be odd if he didn’t know my grandmother by then – they’d both worked in the ALICO building over on Austin Avenue as far back as 1917, and her father was working for his father at the Demmer grain store by 1923.
It was his last job in Waco – Pop Demmer moved to Marshall shortly afterwards to work in accounting, and later branched out into office supply and stationery. Fortunately he did go back to Waco a few years later to marry my grandmother – their honeymoon was a car ride back to his home in Marshall.
Not quite 70 years later I followed my mother’s path back to Baylor and my grandfather’s back to Franklin Avenue when I worked as a judicial intern in the federal courthouse a couple of blocks south. It’s where I learned what these “motion” and “order” things were in preparation for my forthcoming clerkship with Judge Hall in Marshall. And it was where visiting judge Jerry Buchmeyer from Dallas was kind enough to explain his evidentiary rulings to a skeptical law student in Judge Smith’s library while his jury was out.
It’s never stopped being a source of amusement to me that while I can recall clear as day Judge Buchmeyer explaining the context and content of his rulings in response to my question, mercifully I have absolutely no memory of what I said to initiate the discussion – which had to have been something like “your rulings in there sure didn’t seem right to me”. But what he told me was borne out over and over subsequently in trials when – always on Wednesdays – one side started losing every discretionary ruling (this happened most often with Judge Ward), and if it was my side my cocounsel would start panicking. I’d explain to them what Judge Buchmeyer explained to me back in Waco, and everything would be alright.
That courthouse has had an increasing number of patent cases in recent months with the new resident judge Alan Albright. I have been asked many times in recent months if I was going to curate a blog with Waco patent docket news, and the answer is yes – but while watching our Lady Bears blow out ACU last week in Waco last weekend the first round of the NCAA playoffs (seriously, this is actually when I think about these things) I decided that it would be within the existing blog so that I can continue to compare and contrast between the EDTX and WDTX – Waco docket, since many of us practice in both courts, and the procedures are so similar.
So in memory of my grandfather’s store up the street, welcome to Franklin Avenue. I hope you find it helpful.
Chief Justice Roberts’ famous description of judging as “calling balls and strikes” is correct as far as it goes, but in many cases trial courts play an additional role managing traffic as cases and motions are filed.
This may be one of the shorter orders granting a motion to stay under the customer suit exception – but that tends to happen when they’re unopposed. Still, the order is worth a quick read because it tells you something about the case and the docket.
Back on February 5, I posted on Judge Mazzant’s January 16 decision concluding that the Texas Anti-SLAPP statute did not apply in federal court. This afternoon Westlaw published a report and recommendation by a magistrate judge issued the day before which granted an Anti-SLAPP motion. When I checked to see if it was still in effect, I saw that it had been withdrawn, but had generated a show cause order and a flurry of briefing that I thought readers might be interested in regarding counsel’s duty of candor to the court.
Grayson in the demo’ed building with some of the 1897 shelving stacked for reuse as trim and, later, furniture. Compare to Mose Weisman in photo below.
As readers know, I do a bit of woodworking from time to time, especially since I inherited the half a linear mile or so of 100+ year old original growth pine shelving in the old Hub Shoe Store that we renovated into my law offices in 2009-2010.
I’ve built shelves and book racks with details based on the store’s original storage cabinets, as well as a couple dozen handmade photo frames with giclees of an original painting of a local jury box for the board members my year as chair of the State Bar’s Litigation Section.
Hub 001 & 002 – book racks
The latest project is a slant-top stand I use for reading and editing documents, both on paper and on my iPad.
The handmade frames for my LitSec board colleagues turned out to be quite a project
Hub 003 – shelves (shown under construction)
Review stand prototype with parts cut for two improved versions (with photobomb by a piece of lawn furniture I was painting at the time)
The photo at top of the post shows the first prototype in the background, with the two second prototypes in the foreground. I stained them differently to match the Kariels’ two desks in the old store, which we still use in one of the attorney offices on the visiting side.
In order to use them both as a slant-top editing desk and a copy stand I designed them with different slopes on the back so you can use them as both – just flip them 180 degrees. I resized the surface to accommodate not just iPads and papers, but Circa notebooks, since that’s how many of the documents I work with are bound.
Hub Shoe Store founder Mose Weisman shortly after store opened in 1897 – see shoe stand at right.
Interestingly, this photo of the original owner of the Hub Shoe Store Mose Weisman in the store shortly after its opening in 1897 shows something fairly similar at right, which appears to be a stand for displaying a shoe.
I like the stands because they eliminate glare and make it easier to read documents both because of the angle and because they seem to hit the sweet spot for my reading/computer glasses. But I still plan to build another set with improved dimensions, finish, and “pencil rail” design.
The ground rules for when stays are available when an IPR has been filed are fairly well established locally, but occasionally a new fact crops up and requires analysis, or a court provides an updated analysis of the issue. Such was the case here.
