This is a Markman ruling that concluded that a claim term was indefinite. The Court set forth the current standards for such an argument before concluding that the term had been shown by clear and convincing evidence to be indefinite in light of the court’s other constructions. The opinion also addresses several times the argument that a claim term should be given its plain meaning, and provides a good set of examples for when this argument will be accepted.
Section 101 motions asserting lack of patentable subject matter are sometimes brought as motions for judgment on the pleadings under FRCP 12(c). After reading this order, I think I might reconsider whether that’s a good idea.
One of the commonly cited uses for a motion to dismiss to to identify and cut out of a case claims or defenses which don’t have support, either in the law or in the facts of the case. Such motions serve the useful purpose of pruning cases back to what’s actually at issue, although I have an editorial comment on that below.
But as with any pruning job, there’s a line between cutting off the dead wood and cutting out causes of action that are still at least potentially live. This recent EDTX case illustrates where this line is with respect to pleaded claims.
Did you know there was a Texas Business Opportunities Act? I did not know that. But here it is, one of the pleaded causes of action in a case brought by unhappy franchisees of a non-surgical weight loss business. Which brings up another thing I’d never heard of before – a Sculpt Pod. Oh sure, I saw it in Little Shop of Horrors but as a legit weight loss device?
All of which, of course, cannot help but generate a motion to remand this very interesting set of facts and causes of action to back to state court, with some interesting observations by the Court on when a claim arises under federal law.
I’ve seen a couple of cases recently out of the EDTX dealing with breaches of settlement agreements. In some cases the complaining plaintiff (who in this case was the original plaintiff) seeks injunctive relief, but in this copyright case it is just seeking an order in a default situation that it is entitled to the unpaid payments due under the original agreement, as well as fees, costs, and since the infringing activity has resumed, a finding of liability and award of statutory damages. In essence, the hole for the copyright defendant just got twice as deep. (Pro tip: don’t default).
Admittedly this is a default situation, but it’s a nice template for what to seek when you have to go once more unto the breach.
This EDTX qui tam False Claim Act case deals with allegations arising out of mortgage practices, and offers a good example of the application of FRCP 12(e-f) (more definite statement/scandalous matters) to pleadings in the FCA “fraud” context.
It’s FCA Monday again, and this week’s case deals with the discoverability of certain information relating to damages in a False Claims Act case. As with many FCA cases, this one arises out of health care related payments which resulted in Medicare and Medicaid reimbursements by the government. The specific requests here were to the government, and asked for information regarding the payment of similar claims after the government learned of the claimed violation in this case.
The best case caption ever is wasted on a run of the mill business dispute between a company that buys equipment and a cosmetics company looking to dispose of some – but no, not this equipment. Hey guys, are you interested in the closet full of BeautiControl we’re warehousing in the downstairs hall out on Harris Lake Road?
Yeah, there’s a fight over personal jurisdiction and the Court concluded that there wasn’t any with the usual “reasonably expected” and “purposeful availment” analysis, but who cares? I’m still bummed about all that obsolete skin care product I am sneaking out of the house to the dumpster one bottle at a time hoping my wife won’t notice before one of us dies.
As she is smiling, the woman in the picture is most definitely not the plaintiff in this case from the Sherman Division involving gym lockers gone horribly, horribly wrong.
FCA Monday this week is a quick look at settlements and judgments in FCA litigation in the Eastern District of Texas. The agreed judgment in this mid-six figure case contains recitals reflecting the facts of the case, as well as a copy of the settlement agreement that sets forth the claims in this case which involved Medicare overbilling for medical imaging services. These also include the terms of the payments to be made to the named Relators.