September 2023 – Michael C. Smith's Eastern District of Texas Blog

Motion For Judgment On The Pleadings Under Section 101 Granted

September 21, 2023September 21, 2023 msmithEDTX IP, TEXIPLAWBLOG, Unpatentable - 35 USC 101, WDTX Cases

One of my favorite things about modelbuilding is the opportunity it gives me to thoroughly research a topic. Last night I was studying the above recently discovered photo of the U.S. carrier U.S.S. Lexington (CV-2) shortly before the Battle of the Coral Sea in May 1942 which helps nail down once and for all the burning question of whether she had removed the second boat boom aft on the port side for a May 1942 model I’m building (it’ll be my fourth of the same ship at the same battle because I gotta be me). Similarly, with the Waco patent docket thrown to the winds, almost every substantive order now is from a different judge – here the WDTX’ new chief judge Alia Moses, granting a motion for judgment on the pleadings for lack of patentable subject matter, which provides significant insights far beyond the bare language of the order.

You Think 70-10 Is A Good Start? Dallas Cowboys Get Case Transferred and Patent Invalidated On Day Suit Is Filed

September 21, 2023September 21, 2023 msmithNDTX, TEXIPLAWBLOG

Last week the Dallas Cowboys were sued over their stadium app in the Fort Worth Division of the Northern District of Texas. Before the day was out, U.S. District Judge Judge Mark Pittman had issued a show cause order why the case shouldn’t be transferred to the Dallas Division, and Chief U.S. District Judge Alia Moses issued an order finding the patent unenforceable as claiming unpatentable subject matter in a different case filed in Waco. That’s pretty much the judicial equivalent of starting out 70-10 in your first two games. The funny part was what happened next. The plaintiff’s lawyer had to tactfully explain to the court that, um, the “regular and established place of business” for this patent case is the Cowboys’ stadium, which “is” located in the Fort Worth Division, not the Dallas Division. Of course one wonders why the case wasn’t filed where the Cowboys are headquartered, which is, of course not in the Dallas Division either, but in the Eastern District of Texas, Sherman Division at the Star in Frisco.

Pro Hac Vice vs. Full Admission in WDTX

September 21, 2023September 21, 2023 msmithCourt News, TEXIPLAWBLOG, WDTX, WDTX Cases

A pair of orders indicate that some WDTX judges may no longer admit attorneys PHV more than once – application for full admission is required.

Court Costs in Austin

September 20, 2023September 20, 2023 msmithCourt Costs, TEXIPLAWBLOG, WDTX

Magistrate Judge Hightower passed on the plaintiff’s motion in support of its bill of costs following its $175 million verdict against Meta (fka Facebook) and recommended an award of $138,004.95 instead of the requested $229,042.35.

Indefinite

September 20, 2023September 20, 2023 msmithClaim Construction, TEXIPLAWBLOG, WDTX, WDTX Cases

Judge Albright found five claim terms indefinite in this order + chart.

Motion To Transfer Denied

September 19, 2023September 19, 2023 msmithTEXIPLAWBLOG, Venue, WDTX, WDTX Cases

Judge Albright denied defendant Google’s motion to transfer. He initially found “many discrepancies and vague assertions that appear to be unreliable” in Google’s venue declaration, after which he held an in-person hearing to have the declarants testify. The court concluded that “based on that in person assessment of credibility, the court found the witnesses to be unreliable” for reasons specified in the opinion.

Motion to Dismiss/Transfer Denied

September 18, 2023 msmithEDTEXWEBLOG, EDTX IP, Marshall, TEXIPLAWBLOG, Venue

Judge Payne recommended denial of defendant Amazon’s motion to dismiss, finding that venue was proper based on the facts alleged for this stage of the lawsuit, noting that the defendant’s objections relied on disputed facts regarding the use of the accused products in the EDTX. The court also rejected the claim that a forum selection clause require the case to be brought in Washington, and that venue was “clearly more convenient” there.

Motion To Dismiss For Lack Of Standing Denied

September 14, 2023September 14, 2023 msmithEDTEXWEBLOG, EDTX IP, Judge Roy S. Payne (USMJ), Marshall, Motions to Dismiss, TEXIPLAWBLOG, Willful infringement

The court denied the motion asserting lack of standing, finding that the allegations could be cured by filing an amended complaint. The court also denied the motion to dismiss the claim of pre-suit willfulness, finding it plausibly alleged at this stage of the litigation.

Conflicts of Interest Waived … Mostly

September 14, 2023September 14, 2023 msmithDisqualification, EDTEXWEBLOG, EDTX IP, Judge Boone Baxter, Judge Robert W. Schroeder III, Texarkana, TEXIPLAWBLOG

Ruling on the defendant’s objections to the magistrate judge’s order denying its motion to disqualify plaintiff’s counsel, Judge Schroeder noted that while the facts indicate an obvious conflict of interest, the defendant specifically waived most of the conflicts.

Attorneys Fees for Prevailing Defendant in Copyright Case

September 13, 2023September 13, 2023 msmithAttorney Fees, Copyrights and Trademarks, EDTEXWEBLOG, EDTX IP, Exceptional Case award - 35 USC 285, Judge J. Rodney Gilstrap, Marshall, TEXIPLAWBLOG

The prevailing defendant in this copyright case sought an award of fees under 17 U.S.C. § 505. Judge Gilstrap’s opinion sorted through the claims and the parties’ alleged conduct in the case before finally determining the appropriateness of an award of fees, thus giving parties some guidance on when an award of fees in a copyright case is appropriate.