How to Lose Opposing a Motion for Leave to Amend Infringement Contentions

This afternoon I’m working on my first sur-sur-sur-reply, which per some rule someplace simply must be written outside with the aid of some Shiner Bock. But while enjoying the sunshine I also enjoyed this opinion which provides some additional clarification on the always interesting topic of when infringement contentions can be amended. And, more importantly, what conduct by a defendant – which was doing so well just yesterday – kneecapped its ability to oppose such a motion, and what conduct by parties does Judge Gilstrap just really not like? You’ll want to take notes here.

Permission v. Forgiveness

What we referred to in my time in Waco as the “Baylor Rule” was to ask forgiveness, not permission (this might have had something to do with adult beverages in law school, so “Baylor” really should have a footnote appended in this context). But in case there was ever any doubt, that rule doesn’t apply in federal court, may God have mercy on your soul if you assumed it did, and here’s the citation.

Painstaking: Findings and Conclusions on Section 101 Claims

I thought superdetailing the 1/200 CSM and LM for my Apollo 11 Saturn V was painstaking – until I read the attached 32 pages of findings of fact and conclusions of law on a defendant’s assertion that four claims were invalid as being directed toward ineligible subject matter. The Court concluded that one claim was invalid, but the other three were not. If you’re interested in detailed Section 101 analysis – this is the order you want. On the other hand, if you’re interested in scratchbuilt models of NASA hardware … I highly recommend you look into golf or fishing instead.

On the Importance of Reading Standing Orders

Several months ago I posted on Judge Gilstrap’s new standing order on the procedure for using juror questionnaires in his court, which requires coordinating the request with the deputy clerk in charge. In the attached case which is fast approaching trial, the parties submitted a proposed questionnaire, but didn’t follow the standing order. The Court denied the motion for use of the submitted questionnaire for failure to comply with the order.

More Thumbtacks on the “Exceptional Case” Map Board

One of the lasting effects of Prime Minister Winston Churchill’s lengthy stay at the White House in December of 1941 was President Roosevelt ordering a replica of his “map room” to be created in what had been the billiards room just steps from his elevator and his doctor’s office on the ground floor of the mansion. In memory of its use, for many years the last situation map prepared for President Roosevelt on April 3, 1945 hung over the mantel in this room. But FDR’s interest in precisely where his nation’s units were may pale in comparison to patent lawyers’ interest in reading the latest determinations of whether certain conduct gets a thumb tack for “exceptional” for purposes of an award of attorneys’ fees under 35 U.S.C. §285.