Motion for Summary Judgment of No Willful Infringement

A somewhat common summary judgment motion late in patent cases is one that seeks summary judgment as to the plaintiff’s claims of willful infringement. This case provides a useful example of a ruling on such a motion which is, at least in part, aptly summarized by Collin’s shirt – “I Can Only Please One Person Each Day – Today’s Not Your Day (Tomorrow doesn’t look good either)”. Behind Collin is one of the Rose windows at Notre Dame de Paris, which we learned earlier today … are still standing.

Admissibility of Nonretained Expert Testimony

Last month my wife emailed me from the Udvar-Hazy museum outside DC to tell me that our youngest, Parker, had turned into me – he thinks he’s an expert on every aircraft they saw and narrated his way through not one but two Smithsonian museums dedicated to air & space (note the B-17 shirt). His brother Collin’s answer to my question of what he saw at the museum that he liked the most was priceless. “The exit,” he deadpanned.

This order deals with objections to real experts based on a common complaint – that the disclosures were procedurally improper. As we all have to pass that procedural threshold to get expert testimony in at trial, it’s worth seeing what the court thought about the disclosures.

Counterclaims

The plaintiff in this patent case brought a motion to dismiss the defendant’s counterclaims of patent infringement (no, not noninfringement – I know what you’re thinking), promissory estoppel and unjust enrichment. The Court’s report and recommendations, later adopted by the district court, provides a useful foray into the “dancing backwards” world of counterclaims.

Public reprimand for “inexcusable” lack of diligence in connection with venue declaration

Fourteen years ago now, two residents of the Eastern District of Texas drove the few miles that separated their homes from LBJ Freeway in Dallas, where they were rear-ended by a truck driver from Tyler, resulting in the death of their daughter/granddaughter in the back seat. Several months later the survivors of that collision, who had since moved out of the Eastern District, filed a product liability case in the Eastern District.

In its rulings (there were three) on the petition for mandamus of the district court’s order denying the defendant’s motion to transfer venue the Fifth Circuit held that it was the plaintiffs’ current residence, i.e. the residence at the time the suit was filed, that was relevant, not their residence at the time the cause of action arose. The consequences of that ruling have affected the actions of parties, district courts and the Federal Circuit ever since, including in a recent order publicly reprimanding an attorney for inaccurate factual contentions contained in his client’s declaration opposing a motion to transfer.

“Stream of Commerce” Personal Jurisdiction

This is a product liability case in which the third party defendant, a foreign corporation, sought dismissal due to lack of specific personal jurisdiction. The magistrate judge’s analysis of the motion sets forth the current status of the “stream of commerce” approach to personal jurisdiction, analyzing both the foreseeability of the use in Texas, as well as whether the cause of action arose out of the third party defendant’s forum-related contacts, and whether the exercise of jurisdiction would be fair and reasonable. An added benefit is the district court’s order, also copied below, accepting the magistrate judge’s recommended disposition, because it addressed a couple of new arguments raised by the objections.

More Proportionality; Motion to Compel Sales Information Granted in Part

This is an order resolving a motion to compel on damages issues in a patent case.  At issue was whether the Defendants, a parent and a subsidiary, were required to provide financial data on infringing sales made by the parent to entities other than the named sub, and whether Defendants were required to provide financial data for certain additional products.  The Court granted one but denied the other, citing the “p” word and providing a useful list of things not to do to preserve a claim for discovery.

Marshall Jury Holds More Asserted Patents Not Infringed & Invalid

This case is a rematch between two companies which make and sell oilfield equipment used to blow stuff up.  Last year a Marshall jury in Judge Payne’s court held the six claims asserted in that case not infringed and invalid as (1) obvious, (2) anticipated and (3) due to the on sale bar. This year just two claims were asserted and the Marshall jury in Judge Payne’s court held them not infringed and invalid as well, but only as obvious this time.