Here We Go – Request for Mandamus Staying Trial Denied

Well, you won’t be hearing that at AT&T Stadium anytime soon, but you will in Marshall as the Federal Circuit denied Micron’s request to stay the trial of Netlist’s claims against it, set to start later this month, based on proceedings at the PTAB. It wasn’t happy that the district court had not ruled on the stay motion, it was also not best pleased that Micron waited until three weeks before trial to seek review.

Federal Circuit: “Judge Albright Invalidated Too Many Patents”

That got your attention, didn’t it? But this case encapsulated the difference between difference between the “conventional wisdom” about Texas patent judges and reality. In WSOU v. Google, 2022-1063 (10/19/23), the Federal Circuit affirmed Judge Albright’s decision to invalidate one patent as indefinite, but reversed his decision to invalidate another. And as practitioners know, Judge Albright also granted the defendant’s motion for judgment as a matter of law during this same plaintiff’s trial last month in Waco, sending the jury home, and also was affirmed by the Federal Circuit a few weeks earlier for invalidating yet another of WSOU’s patents. It’s the rare article about Judge Albright in which the reporter doesn’t characterize him as “plaintiff friendly.” None of the articles about these developments characterized him as “defendant friendly” – which would be equally inaccurate – but they also don’t note the dissonance between how he is typically described and, um, reality. Plaintiffs do win in his court. So do defendants. Might have something to do with the merits.

Mandamusing an Alternative Service of Process Order

Practitioners in Texas patent courts see orders granting or denying motions to permit alternative service all the time.  What we see less often is the Federal Circuit weighing in on a request by an alternatively-served defendant for mandamus relief from such a motion.  Here the Federal Circuit affirmed Judge Albright’s decision, providing some useful guidance on what’s permissible and the standard for review (with an Easter egg on mandamus standards).

Federal Circuit affirms EDTX “stop instruction”

The conditioning of a jury question on an affirmative answer to a prior question is called a “stop instruction” because it explicitly tells the jury to “STOP” if it found “no” to the prior question.

A common example is an instruction to the jury not to answer a question asking if the patent claim is invalid if it just answered that the claim is not infringed.   That isn’t the case in all trials – if it were then a no claims infringed / no claims valid verdict wouldn’t be possible, and most years that is either the most or the second most common single verdict locally.  And it’s the most common defense verdict, certainly – for example in 2017 of the five noninfringement verdicts where invalidity was also submitted, the jury found the claims invalid in four. (It also found the claims invalid in a fifth case where the claims were infringed).

Last week the Federal Circuit addressed this issue in a case from Judge Gilstrap’s court and affirmed the court’s use of – and later enforcement of – the “stop instruction” under the interesting facts of that case.