The Risks of Truncating Quotes

This order by Judge Gilstrap denies a losing patent defendant’s motion for judgment as a matter of law under FRCP 50(b) with respect to its defenses of lack of written description, obviousness, and anticipation. But more importantly, it indicates that counsel proceed at their peril when they say the witness’s answer was “clear and unequivocal” – but leave off everything the witness said after “yes.”

Extrinsic Evidence, You Say … ?

Ah, extrinsic evidence – the potentially poisonous puffer fish of the claim construction world. While still no train wrecks, alas – constructions are either plain and ordinary meaning or well-nigh unintelligible technical jargon, Judge Payne notes that he “made subsidiary factual findings about the extrinsic evidence” so there’s at least some potential excitement there if he didn’t handle it with sufficient care.

No Enhancement on $445 Million Verdict; No Stay Due to Pending IPR

The document was an entry of final judgment, but that isn’t what’s significant. Defendant Micron had asked Judge Gilstrap essentially to stay the entire case pending the PTAB’s ruling expected next month on a challenge to the patent that made up less than five percent of the $445 million judgment (the patent on which the $425 million was based had already been invalidated by the PTAB). Judge Gilstrap declined, and entered judgment based on the jury’s verdict against Micron in May. But this means only that Micron will begin work on its JMOLs before the ruling next month – it doesn’t mean the case is now ripe for appeal. And it means something else even more important -in the judgment Judge Gilstrap declined to enhance damages pursuant to 35 U.S.C. § 284. Thus postjudgment motion briefing will proceed on schedule, but narrowed.

Section 285 Sanctions in Dismissed Case

Judge Rosenthal granted Defendant Volkswagen’s motion for fees following a dismissal on the merits, citing a plethora of flaws in the plaintiff’s case. They included: (1) seeking an injunction and future damages for an expired patent; (2) seeking pre-suit damages when there was no marking compliance (and no, being a NPE doesn’t excuse application of the statute); and (3) failing to disclose, and in fact lying about the existence of 11 prior settlement agreements. There was oh, so much more, but the bottom line was that the court found VDPP and its counsel, William P. Ramey, III of Ramey LLP, jointly and severally liable for the reasonable attorneys’ fees that Volkswagen incurred in defending this case. Volkswagen has not yet submitted the amount, but its filings indicated it would be seeking at least $121,518 in fees.

Amendment of Infringement Contentions Permitted

Unlike claim construction, either outcome here is informative for other cases because the court separates the facts into the four factors of the relevant analysis and you can study them wriggling in their respective buckets . Here the plaintiff’s request for leave to add three newly-released products was not opposed and leave was granted. Its request to add additional source code citations was similarly granted, but over the defendant’s opposition that the contentions should have been amended sooner.

Again, I’m Only Looking For Train Wrecks

Markman orders are only interesting if something bad happens. It didn’t here. Nothing indefinite. Only a bunch of boring standards and application of the law to specific terms that would only matter to those in the case and the odd lawyer who enjoys educating themself on Judge Albright’s claim construction analysis. And maybe a tiny bit of prosecution estoppel that might be catastrophic but even if so, that’s happening off the page. Sad.