Motion to Strike Expert Reports Granted (in Part)

Judge Gilstrap granted the motions in part, striking an expert’s “analysis” of a letter which provided a legal conclusion, as well as testimony regarding an interrogatory response – because the party had previously agreed it would not refer to it. The court also struck an expert’s discussion of non-infringing alternatives as untimely and ultimately irrelevant in light of the defendant’s decision to offer no damages opinion tying any non-infringing alternative to a proper damages analysis. But there was much that the court deemed admissible, so the order may be useful to practitioners trying to determine what is in and out with respect to expert testimony.

Texarkana Jury Returns Patent Verdict

A Texarkana jury in Judge Robert W. Schroeder III’s court returned a verdict in favor of the plaintiff Pantech against defendant OnePlus in a case involving 5G wireless technology. It found all ten claims across five patents infringed, and none of the five claims challenged to be invalid. It awarded a total of $10.26 million, concluded that all five patents were infringed willfully, and declined to find that licensed base stations substantially embodied two of the patents – which is the finding the plaintiff sought.

Motion to Dismiss Granted in Part

Judge Gilstrap granted the motion to dismiss the claims of direct infringement, agreeing with Defendant that Plaintiff failed to plausibly allege that the accused products meet each and every element of the two asserted claims. The court also granted the motion as to the pre-suit claims of indirect and willful infringement, but denied the motion in all other respects, and granted leave to replead.

The Chicken, The Egg, and the The Frying Pan

You know how parties sometimes get locked into endless discovery loops, whereby a defendant refuses to produce source code of its products without more specific infringement contentions narrowing the list of accused products and services, and the plaintiff refuses to serve more specific infringement contentions without the defendant producing source code that could lead to a more informed narrowing of the contentions? What Judge Gilstrap describes as the “chicken or egg” situation where each side says they can’t move until the other party goes first? Yeah, this is that, and both the chicken and the egg have been threatened with sanctions.


Freedom to litigate in Texas is more like it. Judge Mazzant denied the defendants’ motion to transfer Freedom Patents’ case to Colorado, finding two factors weighed against transfer, one factor weighs very slightly against transfer, and five factors were neutral. “Finding no factors weigh toward transfer,” he concluded, “the Court finds DISH has not met its burden to demonstrate that the District of Colorado is clearly more convenient, and the Court declines to transfer this case to the District of Colorado.”