Marshall Patent Scheduling Conferences – September 2023
Parking on the square in Marshall is almost becoming an issue as the number of patent cases being heard at scheduling conferences is continuing to increase.
Judges
Motion for Leave to Amend Contentions
Judge Payne denied the motion, finding that the plaintiff was not sufficiently diligent with respect to the proposed amended infringement contentions adding additional accused products, and that addition at this stage would be highly prejudicial to defendants. But in a footnote it stated that “[r]ecognizing the potential importance of the amendment, the Court does not foreclose the ability of Finesse to pursue the additional products in a separate proceeding.”
Motion To Dismiss For Lack Of Standing Denied
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
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
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.
Motions to Dismiss Granted w/Leave to Replead; Motion to Transfer Denied
In this pair of opinions addressing motions by two defendants, Judge Gilstrap granted the motions to dismiss, but with leave to replead, denied a motion seeking to find the defendant’s US subsidiary a necessary party, and denied the motion to transfer.
No More “Ghost Rates” – Rules Implementing “No Surprises Act” Set Aside
U.S. District Judge Jeremy D. Kernodle of Tyler held unlawful seven regulations implemented by the U.S. Department of Health and Human Services and its related federal agencies under the “No Surprises Act” that the plaintiff medical providers argued were being used to delay medical billing payment, increase the cost of billing and ultimately compensate providers at below-market rates.
How Trial Settings Work In These Parts
The defendant asked the court to either continue the trial setting or in the alternative, to reorder trials. Judge Gilstrap denied the motion and explains how this all works. And I can add some observations here as well.
Motion to Exclude Damages Expert Denied
Following his recent order deeming established the sales figures in certain third-party reports, the only issue remaining was whether the plaintiff’s reasonable royalty rates included a proper apportionment analysis. Judge Payne concluded that they did.
Invalid Due To Lack Of Antecedent Basis
Judge Payne found a claim term indefinite because it lacks antecedent basis in the claim. “While definiteness does not require absolute certainty, it does require reasonable certainty around the boundaries of the term. The Court finds that one of skill in the art would not be able to reasonably determine what is meant by the phrase “the definition of the plan.””