No, I’m not posing a hypothetical. This JMOL is from the plaintiff’s side, as the jury found none of the asserted claims infringed and three of the four patents’ asserted claims invalid. Then, post-briefing, the PTAB found some of the claims the jury had invalidated not invalid. The order resolving all of this is a useful analysis not just of the usual JMOL and MNT arguments, albeit by a losing plaintiff, but of this rock/paper/scissors question.
One of my favorite law-related blogs is David Coale’s 600 Camp, which follows commercial litigation in the U.S. Court of Appeals for the Fifth Circuit. I normally don’t post on appellate decisions, but this morning’s 600 Camp post on the Fifth Circuit’s recent decision in Puga v. RCX Solutions, Inc., No. 17-41282 (Feb. 1, 2019), had so many useful tidbits that I just had to. In it, the Fifth Circuit affirmed (I have to respect visuals that are as witty and insightful as my own) a substantial judgment following a jury trial in the SDTX in a case arising from a collision with a truck. The decision has useful tidbits on Rule 50 motions, objections to the jury charge, the admissibility of expert testimony and and remittitur, which involves the “disproportionality” analysis. It might even be even better than a JMOL opinion, and you know how I feel about those.
Back when I was clerking for him, Judge Hall recommended that I read slip opinions from the Fifth Circuit as they came out. Chambers received the paper slip opinions as they came out – as we didn’t have the Internet and West wasn’t as up to date on opinions – so simple slip opinions were the best way to see what New Orleans thought of the decisions it was receiving from Judge’s colleagues. In a year’s time, he said, I’d have probably seen all of the issues I was likely to see as a clerk, and it was a good immersion in the issues that actually come up in practice. While that’s true of the regional federal circuit caselaw, especially if you’re a law clerk, it is doubly so for state regional courts and courts of last resort if you’re spending most of your time in state court. Which is what I recall the advice actually being – his dad had recommended he read slip opinions as a young lawyer, and he was passing the advice along using the relevant slip opinions for the job I had at the time.
But if your practice is litigation in federal court, and specifically trying cases in a particular subject matter, the best reading material of all – if you can get it – is courts’ rulings on renewed motions for judgment as a matter of law / motions for new trial following a jury’s verdict. The reason why is that the opinions provide a complete cross-section of what the significant issues were in the case, what the arguments were, and what the evidence supporting those arguments were, because every issue that matters will be in there. Why? Because they have to be for appellate purposes. So reading JMOLs tells you what issues you should be alert to, what the strategies on those issues are, and what the specific judge thought of specific arguments. And that’s to say nothing of the treasure trove of legal standards they contain. Summary judgment rulings use a different standard, and only give you one slice of what was at issue in the case, so they’re a poor substitute.
The orders are actually fairly rare, since such a small percentage of cases make it to trial and then make it through postverdict briefing before settlement. And if a court doesn’t try many cases, you won’t see many, so the chances in most courts of reading a detailed JMOL in the subject matter you’re interested in is actually fairly small. That’s why we who work on patent cases locally are somewhat spoiled in the EDTX since we get to see detailed JMOL rulings in patent cases from the judges we try patent cases before – perhaps as many many as several a year per patent-heavy judge in patent cases alone. So we have a pretty good idea from prior, recent rulings which arguments are effective and which are not. That’s why the attached recently-issued order is worth reviewing.
A trip to the West Coast for a mediation kept me from posting this earlier, but Judge Schroeder’s unredacted opinion in the VirnetX case resolving the postverdict motions is now out, and provides the latest analysis on many issues of interest to practitioners, including most notably enhanced damages, as none were awarded.
Apologies to Yeats, but it is referred to as the “most thoroughly pillaged piece of literature in English literature”, so piling on is permitted. Judge Schroeder entered another final judgment in the VirnetX case last week after denying defendant Apple’s most recent JMOL and motion for new trial. The order itself is filed under seal for the moment, but will be unsealed, less any needed redactions from the parties, on September 10. VirnetX – final judgment VirnetX – sealing order
This is the first weblog post I have written standing at the podium in an EDTX courtroom, but the counsel table chairs are too low to use counsel table, and nobody else is in here, so why not? My cocounsel Brent Carpenter and I just finished a jury trial in Judge Trey Schroeder’s court in Texarkana, and while waiting on the jury (which is still out) I saw that Judge Schroeder put out a 54 page opinion resolving postverdict motions in the Elbit v. Hughes case, include exceptional case fees, yesterday so I wanted to post on that.
Motions for new trial don’t have quite the same significance in federal court as they do in Texas state court, but they are, nonetheless an important tool to at least evaluate after hell has gone to a handbasket at trial. In this Sherman Division case, Judge Clark denied a motion for new trial by the losing party which raised several issues.
These JMOL rulings arise out of a trial last year in a competitor case in which the jury found both sides’ patents invalid, and neither side’s patents infringed. Judge Gilstrap observed, “[a]s Shakespeare’s Mercutio might have said if he been a member of this jury, “A pox upon both your houses.” William Shakespeare, Romeo and Juliette, Act 3, Sc. 1.”
As we will see, it isn’t getting any better for either party.
It’s been a busy few weeks finalizing some other projects, including tests, papers, seminar presentations and the like (and I finally finished that anime-ish P-40 for Parker with accurate paint colors), but I’m finally able to turn more of my attention to some of the very interesting activity in the district in the last few weeks. And speaking of interest, there are few cases that have generated more than VirnetX v. Apple, which just had its most recent trial’s postverdict motions come out. Most legal news is interested in the bottom line – that the verdict amount of $302 million resulted in a $439 million judgment, but for practitioners the analysis of how it got there is of great interest – I am not the only one out there that enjoys a good JMOL. So I wanted to work through the motions, but only after a short … well, that’s a lie, it’s not going to be short – procedural history.
Earlier this year a Marshall jury in visiting CAFC Judge Bill Bryson’s court rendered a $20 million verdict in favor of the plaintiff against defendant Eli Lilly. Several weeks ago Judge Bryson followed up with an order explaining his reasons for several decisions during trial.
Judge Bryson’s order is an example of what I referred to in my talk about JMOLs week before last at Horseshoe Bay as a “whale fall” – the sort of order that can take weeks to fully digest, but if you’re interested in the subject of getting a JMOL on a plaintiff’s claims of willful infringement or on when certain jury instructions are appropriate or how prejudgment interest is calculated it’s worth it.
Our story begins with the defense counsel rising at trial to assert a JMOL as to the plaintiff’s claim of willful infringement…