Complaints About Attorneys Fees Award Rejected

The plaintiff asserted several objections to Magistrate Judge Baxter’s award of fees, none of which Judge Schroeder agreed with. Specifically,

  • yes it can be a report and recommendation,
  • yes, you waived your objections to the court’s claim construction rulings,
  • yes, you should have known your infringement theories were unsupported when the summary judgment report came out in the companion case, and
  • yes, the case is “exceptional” – you continued to pursue theories that you knew or should have known were baseless, filed meritless motions, and argued positions that had already been rejected.

Out With the Old / In With the New

The arrival of the new O’Connor’s is a reminder that we are transitioning to a new year here at the old Hub in Marshall.

I am happy to see the out of office notices from so many subscribers this week, and while the casework side of my practice is slow this week – as is usually the case unless you’re set for trial the first week of January – that’s a good thing as there’s more than usual going on this week.

The Blog / Podcast

Last Week in Texas at BCLT is changing next month from a semi-weekly podcast to a monthly video CLE on its way to a set release date each month for a live broadcast.

Meanwhile on the blog(s), EDTexweblog/TexIPLawBlog crossposting is changing from a straight crosspost blurb to Linkedin & Twitter to straight to LinkedIn only with a more curated set of crossposts of the blurb in Mastodon and Post (full content, including copies of opinions is still only on the blog). This means I’m spending more time customizing posts and discussion for the different platforms. I’m also creating a little more separation in the crossposting between EDTexweblog and TexIPLawBlog since the audience for each is slightly different, and that may show up visually on the blog a bit in coming months.

If increased subscriptions is any indication, the change is having an effect. Or maybe it’s just that the cases are inherently more interesting. Either way, the process of selecting and writing on cases remains more fun than I would ever have expected when I started the blog 19 years ago.

I’ve also ported over my personal blog Puttering In The Study from TypePad to WordPress, and it’s my hope that having three WordPress blogs will result in a little more posting expertise in the WordPress environment.

Litigation Management LL.M.

January 9 is the on-campus week for my LL.M. program at Baylor Law in Waco, so I’m working hard to finish the classwork on the seven courses before then so I can enjoy the stay in Waco. Well, for four days anyway – have to come back to Marshall a day and a half early for a hearing on some discovery motions – but they understand we have day jobs. So it appears I’ll miss the workshops on crisis management. (I think I’ll be okay).

Papers, Papers and More Papers

I am presenting at two seminars in February – on Postverdict Motions at the Advanced Trial Strategies course in New Orleans, and on Patent Venue at the Intellectual Property Litigation course in Houston. Becca Skupin from our Sherman office has agreed to coauthor the former (she’s been handling postverdict motion briefing in our most recent trial in Sherman so her input will be helpful). I’ll be using the recent Berkeley/Stanford seminar paper as a starting point for the latter, but drilling down a little more into trends in recent motions and orders.

2022 Build Review: When Double Builds Go Bad

Not that readers are interested in the dumpster fire that my scale modeling hobby became in 2022, but just in case, here’s the link to the story of how it went full Tesla this year. Fascinating research on all three subjects, but for some reason (trial schedule and the LL.M. might have something to do with it) I didn’t finish a single model in 2022, compared to 13 (albeit smaller ones) last year.

Thanks for following me in 2022, and I’m looking forward to another interesting year in 2023!

Judge Thad Heartfield (1940 – 2022)

Senior U.S. District Judge Thad Heartfield of Beaumont passed away yesterday.

Judge Heartfield was born and raised in Port Arthur, Texas. After graduating from St. Mary’s School of Law in 1965, he began his legal career as an Assistant District Attorney with the Jefferson County District Attorney’s Office. He then became the City Attorney of Beaumont at the age of 28, one of the youngest in the state, where he remained as chief of the legal department for five years. He then went into the private practice of law, representing individuals, corporations and public entities in civil litigation.

In 1994, Congressman Jack Brooks recommended and personally supported the appointment of Thad Heartfield to become a United States District Judge. In 1995, President Bill Clinton nominated him for the position, and he was, shortly thereafter, confirmed by the United States Senate. He took the Oath of Office in April 1995 and took senior status in 2010.

During his tenure, he became Chief Judge and implemented several innovations and improvements to the judicial system, including electronic filing, the addition of magistrate judgeships in Marshall and Sherman, Texas, and he continually lobbied Congress for additional district judgeships. He assisted in acquiring federal funding for a new courthouse in Plano, Texas, and he dramatically increased the growth and success of the Eastern District Bench/Bar Conference, which is, to this date, annually attended by lawyers throughout the United States. At his portrait hanging ceremony on March 9, 2007, he pointedly expressed his view of our justice system as he sees it from the federal bench: “Lawyers are the real backbone of our system of justice, and I respect them for their dedication, sacrifice and hard work, so that justice may be done.”

Judge Heartfield played a crucial role in the development of the Eastern District patent docket. He took the first patent case in Marshall to trial in 1999 (Texas Instruments v. Hyundai), and over the course of that case his writings, later known as the “Jello-O” trilogy (eventually five massively substantive opinions over a ten week period – copies appended at the bottom) displayed a standard for judicial management of patent cases that challenged the judges that followed.

Why Jell-O? This excerpt from Jello-O I tells the story:

At the “Evidentiary Hearing” held before this Court on February 4, 1999, counsel for Texas Instruments, Mr. Kenneth Adamo, succinctly described the trouble with Hyundai’s various arguments it levies to support its “TI Country Concept” interpretation of the License Agreement: “… Hyundai’s license defense, to try to figure out what the defense has been, when, and what the parameters are, if I can use an expression from my childhood, has been like trying to nail Jell-O to a wall.” Transcript of Evidentiary Hearing at 89. This Court has felt similar frustration throughout Hyundai’s briefing and motions. Well Mr. Adamo, consider the Jell-O nailed.
Jell-O I at fn 82 (yes, “eighty-two”) (emphasis added). This massive opinion was handed out at the conclusion of the hearing. The lawyers reading it in the car on the way back from the hearing in Beaumont related that were laughing so hard they had to pull over to avoid causing a wreck.

Judge Heartfield’s wit translated well in his opinions, where they served to make clear to the parties that no matter how much they threw at him, he was equal to the task. “Candor and accuracy are endangered species at hearings;” he once told the parties. “[I]t is nice to know that occasionally these curious beasts roam an environment that so desperately needs them.” A later opinion elaborated that “Well, these curious beasts are nowhere to be found in this particular motion.”

And later in the same opinion “When this Court takes its final step back to see the forest for the trees, it notices Hyundai trying to burn a few of them off.” A later opinion analogized the parties’ dispute to an episode of Star Trek: The Next Generation. It then prefaced an important finding with “Well hear ye, hear ye, [party].” and closed with this “Well [party], try to excerpt, re-define, and confuse this:” Another metaphor about the parties successfully giving birth to a “healthy, sales-cap termination clause” was accompanied by a sad footnote. “Don’t smoke those cigars just yet,” he cautioned readers. “[T]he newborn is about to cause a ruckus.”

Judge Heartfield was the king of timely metaphors, once describing an example of bad handwriting as “the equivalent of someone wearing an astronaut’s suit and writing on a post-it note with a Putt-Putt pencil.” In another opinion he observed that “Thankfully . . . the Supreme Court stuck some prongs in this statute so that courts like this one can properly handle it.” A Heartfield opinion was avidly followed, at least at the end of the hall my office was a located in, because his prose made clear that he had identified the issue to be decided, evaluated the legal standards and the facts, and made clear why he came out the way he did. And the language was to die for.

Judge Heartfield and his wife, Cornelia, were married for over sixty years. His son, J. Thad Heartfield and his wife, Melanie, live in Beaumont, Texas. His daughter, Jennifer Heartfield Fleming and her husband, Scott, live in Rockwall, Texas. I know they have our sympathies in their loss. We will all miss Judge Heartfield greatly.

Motion For Expedited Discovery Denied

Plaintiff DIRECTV sought expedited discovery prior to the scheduling conference to serve third-party subpoenas.  The court denied the unopposed motion, citing the plaintiff’s failure to request injunctive relief as it contended it would, or to attach the proposed subpoenas to allow the court to determine whether the requested scope of discovery was appropriately balanced between the scope of discovery and the privacy interests of defendants.