The Risks of Truncating Quotes

This order by Judge Gilstrap denies a losing patent defendant’s motion for judgment as a matter of law under FRCP 50(b) with respect to its defenses of lack of written description, obviousness, and anticipation. But more importantly, it indicates that counsel proceed at their peril when they say the witness’s answer was “clear and unequivocal” – but leave off everything the witness said after “yes.”

“Go See If That’s Your Daddy In the Box” – CAFC Affirms Judge Gilstrap’s 101 Dismissal and 285 Denial

Franklin Jones, Jr.’s anecdote about the widow who became suspicious that she was at the wrong funeral after hearing the glowing comments about the deceased in the eulogy always comes to mind when I read an appellate opinion.  Because like many lawyers I have seen appellate opinions that bore no resemblance to what happened at the trial court level.  This one doesn’t appear to fall in that category, and actually appears to be dealing with the same case in which Judge Gilstrap granted the defendant’s 12(c) motion finding the asserted claims of the patent invalid for lack of patentable subject matter, but that fees were not awardable under 35 U.S.C. § 285. Since both motions are brought with some frequency, this opinion is helpful in setting forth the relevant standards. Even though it’s an appellate case.

Venue For Claims of Insufficiently Fancy Pecan Pieces – The Most Texas Motion to Transfer Ever

Plaintiff, a Swiss company, sued a pecan company from Corsicana, “The Fruitcake Capital of the World”, Texas for shipping it 12 tons of “fancy medium pecan pieces” that it claimed were defective. No, really. The pecan outfit claimed improper venue and asked for a transfer to the Northern District of Texas, and also alleged the claims as to the alleged lack of the requisite fancy-ness of its pecans were insufficiently pleaded. Judge Gilstrap held that venue in the EDTX was proper as to a Texas pecan shop (because of course) and agreed with the Swiss that the claims were sufficiently pleaded. No word as to any cross claim for disparagement of the Navarro County pecans.

Extrinsic Evidence, You Say … ?

Ah, extrinsic evidence – the potentially poisonous puffer fish of the claim construction world. While still no train wrecks, alas – constructions are either plain and ordinary meaning or well-nigh unintelligible technical jargon, Judge Payne notes that he “made subsidiary factual findings about the extrinsic evidence” so there’s at least some potential excitement there if he didn’t handle it with sufficient care.