IAM Article: “EDTX judge’s new limine order takes name-calling off the table”

My article on Chief Judge Rodney Gilstrap’s new standing order on motions in limine was published on IAM last week – it’s accessible to subscribers here. Unlike most of my writing, which is perhaps more directed towards practitioners, it is focused on what clients might want to know about the order. The principal takeaway is that it ought to save clients money, and help inform them what sorts of issues and arguments are off the table in Judge Gilstrap’s court.

Post-Verdict Motions, Including Inequitable Conduct

Judge Gilstrap denied the defendant’s renewed motions for judgment as a matter of law, letting the jury’s award of $75,229 stand.  In a separate order, supported by findings of fact and conclusions of law, he found that the defendant had failed to establish by clear and convincing evidence its inequitable conduct defense.

“Hot-Then-Cold Positions” – Are They A Good Thing?

The court noted that the defendant was able to secure and produce several employees of the third-party in an effort to distance itself from the EDTX, but when the court ordered venue discovery, defendant suddenly no longer controlled that third party or its employees, and refused to produce documents from them.  “Defendant’s hot-then-cold positions are not well received by the Court,” Judge Gilstrap wrote, and ordered production, adding that “[t]he parties should be mindful that the disputes addressed herein are just the kind of things to be considered when the Court is later asked to determine if this is an exceptional case under 35 U.S.C. § 285.

Can I Just Not Show Up For A Deposition?

Judge Gilstrap granted the plaintiff’s motion to compel the defendant to produce the four witnesses identified for deposition.  Noting that the plaintiffs had previously set the depositions three weeks after the notice, and the defendant did not call the court or move the court for protective order, the court ordered the defendant to pay plaintiff’s attorneys fees and costs of $6,288.25 associated with the four depositions for which the defendant witnesses failed to appear.