Yesterday afternoon a Lufkin jury found in favor of Anascape in a patent case brought against Nintendo having to do with controllers for the Wii and GameCube systems. Anascape had also sued Microsoft, but settled shortly before trial began. Damages assessed were $21 million. I'll post with more details once I've studied the verdict form.
It may not be quite as cool as the new iPhone, but it does have some neat new bells and whistles. This weekend, May
17 and 18, the U.S. District Court for the Eastern District of Texas will
upgrade to the latest version of CM/ECF version 3.2.1. CM/ECF will be unavailable for new filings on
these dates, however it will allow query and report access. CM/ECF will be on-line no later than 8:00
a.m., May 19. You may access our web site at the link provided below to check
the availability of CM/ECF at any time.
A document that outlines the new features of 3.2.1, CM/ECF 3.2.1 - New Features for Attorneys, is on the district's website (and clickable from this post). It's worth looking at as some of the new features in CM/ECF are going to make the system much more user-friendly. They include
Good stuff - I look forward to giving it a spin when it's up and running. (Yes, I know that's a pretty pathetic thing to look forward to, but, hey, I gotta be me).
Our website is www.txed.uscourts.gov
Nord Service, Inc. v. Palter, --- F.Supp.2d ----, 2008 WL 620545(E.D.Tex. Mar 03, 2008) (NO. 2:06 CV 548)
Judge: Leonard Davis
Holding: Defendants' Emergency Motion to Dismiss for Lack of Authority DENIED; Motion to Strike Document Authenticity Expert DENIED
Plaintiffs asserted the defendants did lots of bad, bad things (not including patent infringement, so you patent lawyers can quit reading right now). Defendants asserted, in essence, that Plaintiffs did not own the leg that their dog bit, assuming of course that there was actually a biting, which they deny (or maybe they admit the biting but deny that they own the dog - to borrow Jim Belushi's famous phrase from the underrated cinema classic About Last Night, "at this point, we don't know"). Judge Davis held a day and a half evidentiary hearing on the issue of whether the plaintiffs had authority to bring this action against the defendants, and concluded that the defendants' motion attacking the plaintiff's authority to bring the action should be denied. Of interest was the related motion to strike the testimony of an expert regarding the authenticity (or lack thereof) of the various corporate documents at issue, which Judge Davis also denied.
The Federal Circuit, in Technology Properties Ltd. v. ARM Ltd., 2008- 1020, without issuing an opinion, upheld May 9 a finding that ARM doesn't infringe Patriot Scientific's patent. Patriot Scientific's Technology Properties unit (TPL) sued electronics companies including Matsushita Electric Industrial Co., Toshiba Corp. and Fujitsu Ltd. in Marshall in 2005 over several patents in Technology Properties Ltd. v. Fujitsu Ltd., 2:05cv494. TPL eventually settled with the defendants other than ARM, but it had previously stipulated to noninfringement as to ARM based on Judge Ward's claims construction ruling, and appealed that ruling. ARM lawyer Kevin Anderson of Wiley Rein in Washington argued the case before the appeals court last week, and told Bloomberg Media that "[t]his is the first time they've litigated their patents to finality and they lost.'' Congratulations to Kevin and James Wallace of Wiley Rein, both of whom I was fortunate to work with in the underlying case as local counsel for ARM.
Joe Mullen is a reporter at IP Law & Business magazine who also runs a weblog The Prior Art - One reporter's notes on the IP beat . In his recent post on highlights from the May issue of the magazine he notes an article on the pending In re VW en banc proceedings at the Fifth Circuit. The article is at p. 14 of the May issue, which is available to subscribers - although it may show up on the magazine's website soon (as, for example, the 50 Top IP people under 45 article has). Good article.
This Thursday I'll be in Dallas speaking at the Texas Association of Defense Counsel's 2008 Intellectual Property Seminar at the Belo Mansion (home of the Dallas Bar Association). My assigned topic is "Everything You Need to Know About the Patent Reform Act." The lineup for a seminar looks like a good one - here's a copy of the brochure Download Brochure.pdf
Womack v. Nissan North America, Inc., 2007 WL 5160790(E.D.Tex. Oct 12, 2007) (NO. 2:06-CV-479-DF)
Judge: David Folsom
Holding: Plaintiff's Motion for Limited Discovery GRANTED; Defendant's Motion to Dismiss for Lack of Jurisdiction and Insufficient Service of Process DENIED WITHOUT PREJUDICE
This is the putative (a word created to describe the first stages of class actions, as best I've been able to tell) odometer class action. Plaintiff moved for limited discovery on matters bearing on Nissan America's motion to transfer to the Eastern District of Michigan and to consolidate with three other cases pending in other districts and to establish proper service. Subsequent to this motion, the other actions with which Nissan America had requested consolidation were voluntarily dismissed. At the hearing on September 6, 2007, the parties indicated that they had reached an agreement on the motion to dismiss for improper service, so the only matter remaining for Judge Folsom to rule on was the motion for jurisdictional discovery and the motion to dismiss for lack of jurisdiction.
Essentially, Defendant Nissan Japan moved for dismissal alleging lack of personal jurisdiction, and plaintiff sought discovery into the defendant's contacts in order to respond. After reviewing the parties' arguments, Judge Folsom held that the Plaintiff has “suggest[ed] with reasonable particularity the possible existence of the requisite contacts” and therefore allowed discovery into the extent of control exercised by Nissan Japan over the affairs of Nissan America, and denied Nissan Japan's Motion to Dismiss without prejudice. The specific jurisdictional discovery permitted (whichs sets forth the framework for the proceedings to resolve Nissan Japan's personal jurisdiction defense) was the following:
It is ORDERED that for jurisdictional discovery as to Nissan (Japan), Plaintiffs may serve no more than twenty-five (25) interrogatories and twenty-five (25) requests for admissions. It is further ORDERED that for jurisdictional discovery as to Nissan (Japan), depositions shall be limited to a total of twenty-five (25) hours, except that deposition time requiring the use of an interpreter shall only count as half-time toward this total, e.g. one hour of deposition time requiring an interpreter shall only count as thirty minutes toward the twenty-five hour limit. No one deposition shall last longer than six (6) hours. These depositions shall take place in a mutually agreeable city in Japan, unless the parties agree otherwise.
It is further ORDERED that jurisdictional discovery shall be completed within 75 days after entry of this Order. Defendant may renew its motion to dismiss for lack of jurisdiction within 30 days of jurisdictional discovery being completed.
Judge Heartfield just signed General Order 08-8, Download 08-8.pdf
which amends several local rules and adds new Local Rules CV-5.2 and CR-49.1, which create new transcript redaction procedures in accordance with U.S. Judicial Conference policy regarding redacting private information from transcripts.
Long and short of it is this - Judicial Conference policy - and now FRCP 5.2 - require (kinda sorta - you have to read the rule) that certain private information (bank accounts, social security numbers., etc.) be redacted from court filings. When the issue came up of what to do about private information in transcripts - because forthcoming changes will result in hearing and trial transcripts becoming available online - procedures were added last year requiring attorneys to take responsibility for redacting private information in transcripts before they become available online. These changes amend those changes to set out the procedures for attorneys to follow to redact when the need arises, while avoiding giving us all free copies of the transcripts from the court reporters under the guise of letting us review them to see if any changes are needed. Essentially, if you didn't make sure during the hearing that private information was kept out of the record, you'll need to either buy a transcript to prepare the
changes, or view the transcript at the terminal in the clerk's office.
If you have this come up in one of your cases, read this order carefully to see what the procedure is.
Starting yesterday readers will be seeing posts from guest author Susan Fisher, who is an attorney with our firm's Sherman office, where her practice focuses on general trial and
appellate practice in federal and state court, intellectual property
litigation, lender liability, and creditors' rights. She graduated from the
University of California at Davis with a B.A. in sociology (1991) and received
her J.D. from the University of the Pacific, McGeorge School of Law (1994). She has been a member of the California State
Bar since 1994, and was admitted to the Texas bar in 2000. Susan has two
daughters, Morgan and Katharine.
As I've noted previously, Susan was elected to the State Bar board of directors last month replacing me, and will be sworn in next month at the State Bar's annual meeting. Susan's posts will focus on cases coming out of Sherman and Plano, principally those by Judges Richard Schell and Don Bush.
Womack v. Nissan North America, Inc., --- F.Supp.2d ----, 2007 WL 5160791(E.D.Tex. Feb 16, 2007) (NO. 2:06-CV-479-DF)
Judge: David Folsom
Holding: Motion to Dismiss for Lack of Subject Matter Jurisdiction DENIED
This is a class action in which the plaintiff claims that the defendant makes vehicles that violate the Federal Odometer Act because they allegedly inflate the mileage driven by 2% over the actual mileage driven, thus reducing the value of the warranties and diminishing resale value. Judge Folsom found that the plaintiffs stated a sufficient claim to confer standing, and accordingly denied the motion to dismiss for lack of subject matter jurisdiction. Judge Folsom also denied the 12(b)(6) motion, noting that an issue of fact existed as to how much inflation occurs, as well as how much inflation is permissible under the Act.
Nissan also sought dismissal or repleading under FRCP 9, claiming that the plaintiff had not sufficiently pleaded its "fraud-based" claim under FRCP 9. Judge Folsom declined to decide whether the plaintiff's claim was sufficiently fraud-ish to trigger the pleading requirements of FRCP 9, instead deciding that even if the rule applied, the plaintiff's allegations satisfied it.
