Marshall Patent Scheduling Conferences – March 18, 2019
Another round of patent scheduling conferences yesterday across the street that resulted in some interesting dates.
Month: March 2019
Chess?
I was just talking with a nonlawyer who observed that what we do in litigation must be like playing a game of chess. I thought about it, and told them it’s more like playing the old Operation board game on a stagecoach.
Request for Declaration of License Offer as FRAND Denied
More and more recent patent cases involve patents a party declares are essential to practice a standard. As was recently the situation in a case in Tyler, sometimes a party asks a jury to determine whether a party holding standard-essential patents complied with its obligations in its negotiations. In this case, the plaintiff asked the Court to declare that it had not breached its obligation to offer a license on FRAND, i.e. fair, reasonable and nondiscriminatory, terms. In other words, was its offer FRAND?
From stay to verdict
This time the verdict is from Tyler, where a jury passed on a claim that had been stayed previously while proceedings played themselves out at the PTAB. The jury found the single asserted claim infringed, that the claim wasn’t shown by clear and convincing evidence to be invalid, and assessed damages of $1.5 million. I have attached the verdict form and some other tidbits I thought might be of interest on the stay issue.
Pretrial Hearing No. 1
This is an interesting case. At the pretrial hearing held earlier this month the Court ruled on a number of pending motions and set a second hearing later this month, still in advance of jury selection in April.
Travel time sanctions
It’s not EDTX, but it’s interesting given the requirement of analyzing whether a forum is “clearly more convenient.” Judge Selna of the Central District of California recently granted in part the defendant’s ex parte motion to sanction plaintiff after the court set aside its default of the plaintiff in this 2015 case, focusing on the travel time to the hearing. Well, more like travel time from hell, really. The Court recognized that “five hours is a reasonable estimate of time to travel from [defense] counsel’s offices in Pasadena and Sherman Oaks, including arriving sufficiently in advance of and attending the pretrial conference.” At $350 an hour for two lawyers coming to a scheduling conference that worked out to a little under $3,500, awarded as a sanction against the tardy plaintiff. The docket is not crystal clear, but it appears the plaintiff’s counsel appeared late for a pretrial conference in this 2015 case in Santa Ana, and the Court then dismissed the case, and after reinstating it awarded fees for defense counsel’s attendance at the hearing.
Motion for Summary Judgment Granted
Patents make it to the market in many different ways. In this case, the inventor/IP owner created a product embodying the IP from the patent and licensed the trademark and distribution rights for the product to another company. Both (now plaintiffs) then entered into an exclusive management agreement with two other companies (now the defendants) to market and sell the product. That agreement also contained a promise by the defendants to buy certain product from the plaintiff. An issue in the case was whether the plaintiffs were obligated to fulfill contracts between the defendants and their distributors including agreements with a distributor affiliated with the defendants.
“Reg. U.S. Pat. Off.”
The latest downtown renovation project in Marshall is Memorial City Hall, which is being renovated for us as historical museum and performance space. The city moved into a new city hall in 1994, and the auditorium has been unused probably since the city completed the Civic Center in 1976. The building has bad associations for me since I got separated from my parents in it after a Lions Loonies show when I was two or
But I digress. The old auditorium folding seats made by Heywood-Wakefield with
Interestingly, in addition to the manufacturer’s stamp on the inside of each arm, the benches carry
Before I realized that that’s probably just a service mark for the name of the company and has nothing to do with patents, I went down the rabbit trail of patents Heywood-Wakefield had at the time it was cranking out seats for the new Marshall city hall in the 1
Again, I now think the mark was for the company name, and there’s no patent number marking, but it’s an interesting note. Yes, I did check for
And the “BR”? Well, the “R” means “right” – the
And going out on a bit of a limb here, I think the “B” indicates “balcony”, since the seats sit level, as they would for the stadium seating (which the MCH balcony is) and not sloped main-floor seating. I’ll bet that the main floor aisle seats are
“As a final point, the Court does not observe, based only on the evidence presently before it, anything exceptional about the parties’ conduct in this case.”
In any context but patent litigation, this would be a bad thing. But this quote from an opinion granting in part a voluntary dismissal in a patent case but making clear that the Section 285 issues – NOT THAT THERE ARE ANY – are reserved for later reminded me of one of the epic scenes in a Monty Python film where John Cleese unsuccessfully tries to bring order to a stoning. But I guess I could talk about the order as well.
Changes to Patent Case Docket Control Orders
More changes to the standard provisions in the docket control orders applicable to new patent cases.