Judge Payne recommended denial of the motion to dismiss for improper venue, finding that the defendant did have a regular and established place of business in the EDTX when suit was filed. He also recommended that the motion to transfer venue to the San Antonio Division of the WDTX be denied, finding that the defendant had not shown that that forum was clearly more convenient. (It’s unclear if this was the map of Texas that the defendant was using).
Judge Pitman stayed this Austin Division case after the defendant filed a request for IPR review.
In a scene reminiscent of any number of Star Trek episodes where the bad guys gain access to sensitive computer data, the plaintiff alleges that the defendant over-accessed plaintiff’s medical imaging systems to generate fake access credentials. The court granted plaintiff’s second motion to compel, requiring defendant to (1) provide “cross-walk” information relating a revised production to the original, (2) fix issues with production of text messages, (3) reproduce documents in the (organizational) form in which they are maintained, and (4) properly mark documents with their confidentiality designations.
But the procedural context is twisted in this case involving a whiskey distillery. The court previously remanded the state law causes of action, so the question presented was what to do with the dec action? After analyzing the Trejo factors which assist a judge in the discretionary call of whether to keep a case that has a parallel state court action, Judge Pitman concluded that all of the “federalism, fairness, and efficiency” factors weighed in favor of dismissal.
Plaintiff sought dismissal of the defendant’s claims that the plaintiff – a false eyelash manufacturer – engaged in false patent marking and false advertising in this case dealing with false eyelashes. (You can sort of see the theme, can’t you?) Judge Gilliland concluded that the false patent marking claim was not time-barred, that there was marking of an unpatented article, sufficient facts were pled to allege the requisite intent to deceive, and there was a sufficient showing of a competitive injury to require denial of the motion to dismiss. But the court did recommend granting the motion to dismiss the false advertising claim, noting that statements of inventorship – here “innovator” – are not actionable as false advertising, and recommended dismissal of the defendant’s claims against an individual as lacking personal jurisdiction.
Judge Brown agreed with plaintiff BSA that the defendant’s motion to dismiss this trademark infringement case for lack of jurisdiction should be denied. (Then-Tiger Cub Grayson is now a semiconductor engineer in Austin, so he has to squint even harder).
In a scene somewhat less relaxing than this one canoeing at Fern in December, a Marshall jury in Judge Gilstrap’s court returned a verdict in the ATL v. CosMX case last Friday. All four claims were found infringed, but two were proven invalid. At least one of the four was willfully infringed (yes, I know what you’re thinking and no, we don’t know from the verdict form whether it was the ones that were not found invalid). Damages were set at $3,701,108. The jury also found that a letter by the plaintiff was not shown by clear and convincing evidence to be both objectively baseless and an attempt to interfere with a business relationship of a competitor through use of the litigation process, nor did the plaintiff engage in anticompetitive conduct.
No, I’m not joking about the heron – this photo (not taken today) is of our friendly lake bird. A slightly less friendly Judge Albright denied everything the plaintiff requested on this discovery dispute, including info on the accused products, and a corporate deponent from the defendant on numerous additional issues.
I’m enjoying a quiet morning at Fern Lake outside Marshall watching the squirrels in the yard, the big heron out on the lake, and the judges refereeing discovery squabbles. First up is an interesting set of motions in Waco seeking to sub in a replacement validity expert, and compel an immediate deposition of a damages expert.
In a sua sponte order, Judge Gilstrap decided to stay the Netlist trial pending a decision on the IPRs in the remaining two patents, which are due in the next 60 days. Judge Payne had previously recommending denying the stay, Judge Gilstrap had accepted that recommendation, and the Federal Circuit had declined to order a stay on mandamus.