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.
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.
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.
This motion began life challenging venue as improper and inconvenient. The portion alleging improper venue was later withdrawn, so the only issue remaining was whether venue was “clearly more convenient” in the Dallas Division of the Northern District of Texas.
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.
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.
Today saw one summary judgment ruling and five Dauberts roll out from the chambers downstairs across the street, making things about as busy downstairs this week as they were when this photo of Judge Payne’s future courtroom was taken in 1940-ish. So let’s take a quick look, shall we?
One of the more recent examples of the venue order is this one from Judge Payne last month which denies a motion seeking a transfer to Delaware . What makes this order different than the run of the mill orders – what Justice Scalia would have called “mine run” for reasons that still baffle legal scholars – is that it’s based on some forum selection clauses in prior patent license agreements, as well as a judicial economy argument due to prior Delaware cases.
And now from the tart side of the menu, we have an order excluding an expert’s testimony as not based on sufficient qualifications only a couple of weeks before trial. No, no leave to submit an additional report was granted – didn’t you hear me describe it as “tart?” If leave had been granted I would have described it as creamy, with a hint of cinnamon and nut in the crust.
It’s one of those transition days at the office as my last two October trials either settled or were continued within 24 hours of each other yesterday after a whirlwind last couple of weeks full of activity getting both ready for their respective pretrial conferences. You know the kind of day I’m talking about – closing files, stacking up the documents to be shredded, trying to clean up the mess my to do list has become, and having the usual existential debate – am I happy or sad that I’m not as busy as I was two days ago.Hmm. In terms of specifics, this morning it means I’m in the office early enough to tack on another post before the daily weblog email deadline of 8 am, and I thought this order seeking partial summary judgment on the issue of damages, which deals with marking issues.