Eastern District of Texas Federal Court Practice

Verdict in Colucci v. Callaway

I'm too busy catching up with yesterday's e-mails to come up with a bad golf pun, so I'll report it straight.  On Friday a Tyler jury in Judge Love's court broke the tie of two wins each in patent trials thus far this year - sort of - finding that although the accused products did not infringe literally, they did infringe one of the two asserted claims under the doctrine of equivalents.  The jury found that neither of the patents had been shown to be invalid by clear and convincing evidence, and assessed $135,416.00 in damages for the infringement.

The jury rejected completely the plaintiff's trade dress claims.

Pretrial Conference in Washington, D.C.

As readers are aware, Federal Circuit Judge Randall Rader is sitting as a district judge in several patent cases set for trial in Marshall in April.  Yesterday I enjoyed a quick trip to Washington, D.C. to attend the pretrial conference in one of the cases, in which I am acting as local counsel.  It was held in the Federal Circuit building on the east side of Lafayette Square (the park immediately north of the White House).  We spent a full day, meeting with Judge Rader from 10 am till after 5 going through the various pending summary judgment and Daubert motions, as well as going over Judge Rader's procedures for the trial itself (number of jurors, number of strikes, time for trial - that sort of thing).

It was a one-night trip (actually there was an unintended second night at DFW last night, but that's a different story) but I still managed to fit in a visit the night before to my favorite DC bookshop from my graduate school days, Second Story Books off Dupont Circle where I picked up some prints for the new office, and a nighttime walking tour of the new World War II Memorial and a few other monuments on the way back to the hotel.  (My wife and I are headed back to DC Monday with our oldest, Grayson (10) for a Marshall Chamber of Commerce trip so I was doing a little advance work as well, as this will be Grayson's introduction to our nation's capitol).  Also went to 8 am Mass at St. Matthews's Cathedral on Rhode Island the morning of the hearing, which I really enjoyed.  I used to be an altar server at St. Matthew's back when I worked in DC, and served at the MWF 8 am Masses, so it was nice to see how they do it these days, and say hi to the Water Skiing Pope and Our Lady of the Tennis Racket sculptures.  The server cassocks are now tan (instead of black with white surplice, as God intended) and the priest was, as best I can tell, a teenager, but it was still a good way to start the day and brought back some good memories.

Matt Powers and Microsoft

Zusha Elinson over at LegalPad (a blog over at Cal Law) has a short post today on Microsoft's Matt Powers being back in Judge Leonard Davis' court representing Microsoft after the rather hard-edged comments he put in an appellate brief last year. 

Not exactly news that I think Judge Davis will be fair to parties in his court, but it was nice to get a chance to comment that I don't think it is appropriate to use the kind of tone that was used to address a judge's decisionmaking process during a case.  You can disagree with a judge's rulings (and I often do - usually when I lose) but there is a line that you don't cross, because - well, first of all you might be in that judge's court again soon (a quick PACER search might have noted that Microsoft still had cases pending in Tyler).  In a small town, that's sort of a consideration.  I've had somewhere around 150 cases in which I've appeared before Judge Ward in Marshall - you think I'm going to use a broad brush when I need to appeal one of his rulings?  My first appeal at the Fifth Circuit was actually trying to get Judge Ward reversed on a damages issue - in later appeals I'm usually defending his rulings, which is usually a much safer position.

But more importantly, it's really a simple matter to attack a judge's ruling without attacking the judicial officer - lawyers do it all the time, and judges expect it.  Judge Ward (to use an example) is always helpful in giving parties the opportunity they need to make their record.  They give it their best shot, and as Judge Hall used to say "if the Fifth Circuit thinks I'm wrong, they'll tell me."  (I thought Judge Andy Hanen of the Southern District had a better observation when he said "They can reverse me, but they can't make me read it.")  Judge Lee Yeakel, I think it was, that pointed out to that he doesn't mind the "reversed" part - it's when it is followed by "...and remanded for a new trial."  Oh the horror.

The real problem, as I see it, is not the rhetoric itself - it is when lawyers believe that a reviewing court is actually receptive to rhetoric that is derogatory to an individual judge, and not just to the ruling in question.  The perception that that attitude exists gives lawyers a decision to make when trying to decide whether to present the case as a judge simply making a mistaken ruling which requires appellate intervention, or whether to cast it as something broader.  I don't think it's a difficult decision, because officers of the Court should certainly not be enabling any such attitude, even assuming it exists in the first place, but, hey, that's just me. 

Counsel Ordered to Meet and Confer for Deposition Confidentiality Designations

Texas Advanced Optoelectronic Solutions v. Intersil, 4:08cv451

Judge: Don Bush

Holding: Motion to Dedesignate Depositions TAKEN and RUN WITH

You have to read this one to appreciate it.  Download TAOS v Intersil Defendant moved to dedesignate a deposition as confidential. Judge Bush reviews the deposition statements and indicates that he doesn't think at least parts are terribly confidential.  "The parties should now get the drift of the Court’s position on this," he concludes.  "Much of this is just plain silly."  he then orders the following:

The Court refuses to issue a ruling on this matter unless the parties conduct meaningful discussions. Therefore, the motion (Dkt. 63) is ORDERED STRICKEN from the record for both parties’ refusal to engage in civil, professional, and meaningful discussions. The Court notes that an unreasonable failure to meet and confer in accordance with the very detailed provisions of Local Rule CV-7(h) violates Local Rule AT-3 and is grounds for disciplinary action. See E.D. TEX. L.R.CV-7(h).
Within seven (7) days of the date of this Order, counsel are instructed to sit down and meet and confer, line by line, as to the entire deposition. What is truly in dispute should be designated by page and line number and should indicate the applicable portion of the Protective Order. Written designation by TAOS is to be served on Intersil within 24 hours of the sit and confer. If Intersil opposes the designation, it is directed to submit the opposition in writing within 24 hours of TAOS’s designation. The Court will then rule on any disputed designations. If the Court finds that any one party has been unreasonable or is engaging in gamesmanship, the Court will consider an appropriate motion for sanctions for discovery abuse. By failing to comply with the rules of this Court, the attorneys in this case are unnecessarily incurring expenses on behalf of their clients, and, as such, all counsel are directed to serve a copy of this Order on their clients.

(Emphasis mine). 

Civil Case Appointment List

I wanted to pas along the following announcement:

If you are interested in assisting indigent litigants while gaining valuable first chair trial experience, please contact the court’s volunteer coordinator, Eric Albritton, who maintains a list of lawyers available for court-appointments in civil litigation matters.  Volunteers must be admitted to practice in the U.S. District Court, Texas Eastern.

The volunteer coordinator acts as a liaison between the court and counsel in order to provide the necessary information concerning the case and parties.  Upon review of the case, counsel will have the opportunity to decline appointment.  If counsel declines the appointment, the volunteer coordinator will contact the next person on the civil appointment list.  

The court has some funds available to reimburse reasonable expenses and fees.  See "Plan for Reimbursement of Attorney Expenses in Civil Cases," Appendix I, Local Rules.

Please notify Eric M. Albritton via e-mail (courtappointments@emafirm.com) if you would like to be included on the civil appointment list.  

 

Federal Circuit Affirms Contempt Finding in TiVo v. Echostar

This morning the Federal Circuit issued its opinion Download 09-1374 affirming Chief Judge Folsom's order finding Echostar in contempt of the court's permanent injunction order.  As readers may recall, the Federal Circuit previously affirmed the claims construction of the software claims and the jury verdict.  Importantly, the permanent injunction was not appealed.

On remand, TiVo sought to have Echostar held in contempt for violating the court's injunction.   To make a (very) long story short, Judge Folsom agreed, and assessed sanctions of $90 million.  Today the Federal Circuit wrote that "[w]e conclude that the district court did not abuse its discretion in finding that EchoStar’s modified software raised no substantial open questions of infringement. . . . EchoStar’s proposed standard would make it almost impossible for a district court to employ a contempt proceeding to enjoin infringing products. Compelling the parties to undertake a new trial every time there is a dispute over previously adjudicated infringing products would fail to serve the goals of judicial economy. We disagree with the dissent that a new trial is necessary here for the parties to reargue an issue – the operation of the exact same PID filter – that has now been argued multiple times to the district court."

In a nod to the district court's expertise, the court noted "The district court has presided over this case for over five years. Given its familiarity with the parties, the patent at issue, and the infringing products, in addition to the well articulated reasoning for its decision, we do not find an abuse of discretion in the court’s decision to hold contempt proceedings."

The court was also not impressed with Echostar's claim that the injunction was overbroad, noting that it did not appeal it.  "EchoStar raised a variety of issues including claim construction, infringement, and various other trial rulings in its appeal from the district court’s prior judgment. See TiVo, 516 F.3d 1290. EchoStar even moved us to stay the permanent injunction pending that appeal, and we granted a stay. EchoStar strongly protested the injunction, detailing the potential damage it would suffer from the injunction in its motion to stay. However, it failed to raise the issue on appeal. The fact that there were numerous other issues on appeal cannot excuse its failure to appeal the injunction. Had EchoStar brought an appeal on the injunction, we could have addressed its legitimacy. The time to do so has long passed. . . . . We thus agree with the district court that EchoStar waived any argument that the injunction was overbroad."

Judge Rader filed a nine-page dissent in response to the majority's 26 page opinion.

Opti v. AMD case settles before closing statements

We'll have to wait a few more days to see whether the plaintiff or defendant will get to three patent wins this year first - the OPTi, Inc. v. AMD case that was being tried last week before Judge Everingham downstairs in Marshall (while we were trying the Sanchez case upstairs before Judge Ward) settled just before closing statements this morning.

Marshall Jury Finds for Plaintiff in Trucking Case

For the second time in as many months I am pleased to be able to congratulate my cocounsel on a favorable result in a trial in federal court here in Marshall.  Following our firm's assistance in a defense win last month (a JMOL at the conclusion of the plaintiff's case in a patent infringement case) we have a plaintiff's win to report this month.

Today my cocounsel Maria Wormington of the Wormington Law Group and Lin McCraw of McCraw & Gantt, both from McKinney, received a verdict in favor of our client Adriana Castillo Sanchez and her son Raul Argote in Sanchez v. Commercial Transportation, Inc., et al, 2:09cv47 from a Marshall jury in Judge T. John Ward's court.  The case arose out of the death of Ms. Sanchez' husband  and Raul Jr.'s, dad Raul Argote Robles in a collision with a truck operated by defendant CTI just south of Marshall on US-59 on January 5, 2009..

The jury found the decedent five percent at fault and the defendant trucking company, driver and sibling company (which performed maintenance on the truck) 95% at fault and assessed damages of $2,105,000 between Adriana, her son, and Raul's parents.  $1.475 of the damages were were economic losses - the remaining $630,000 was for noneconomic losses.

The case began trial before the Marshall jury on Wednesday, February 17, and continued through Monday February 22.  Lin and Maria put on an expert economist, accident reconstructionist, biomechanic, and expert on trucking safety - as well as calling the defendant's trucking safety expert as an adverse witness.  The defense did not offer any expert testimony of their own.  Of interest, the defendant's case in chief was presented Monday afternoon after the plaintiff rested, and consisted of two witnesses (a bus driver live and a fact witness by reading of deposition) whose combined testimony, including cross, was eight minutes. 

This was a particularly enjoyable trial for me because I got to work with Lin again for the first time since he and I were Practice Court partners at Baylor Law School nineteen years ago, culminating in the infamous "full discovery" trial in the summer of 1991 (anyone remember the case of the headless boater?).  Professor Powell will be glad to hear that we did a little better on our time management this time, using something like nine hours for our direct examination of our witnesses, and under five minutes for cross of the defense witnesses.  Fortunately we still look the same, right?  (Love the big hair - don't you miss the 80's?)

Again, congratulations to Maria and Lin on a great result for a deserving client. 

Infringement Finding in Smith & Nephew Patent Case

The Smith & Nephew v. Arthrex case concluded Tuesday with a jury finding of direct and induced infringement of the one remaining claim asserted.  The jury answered no to the public use and on sale defenses, and assessed damages at $4,713,000 ($4.7 million).

That's two wins for the plaintiff and two for the defendants in ED Texas patent cases thus far.

Judgment as a Matter of Law Granted on Willful Infringement Claims in Smith & Nephew case

As readers know, the Smith & Nephew v. Arthrex case dealing with the defendant's RetroButton ACL repair device is in its fifth day of trial today in snowy Marshall.  Judge Ward has now granted the defendant's motion for judgment as a matter of law with respect to the plaintiff's willful infringement claims (a motion for reconsideration of that decision was filed this morning).

As readers know, I have been posting recently (and including in my talks) recent decisions by judges and juries post In re Seagate to not submit (or not find) willful infringement, either by judges taking it out of the case by summary judgment (Crane v. SandenVendo)or judgment as a matter of law prior to submission to the jury (Southwest EFuels v. 3T), the jury not finding it, or granting a JMOL after the jury finds it (Centocor v. Abbott and Opti v. Apple).  This case is the second in the past month (Southwest EFuels v. 3T in January) in which Judge Ward declined to allow a willful infringement claim to go to the jury (to be fair, the JMOL was on all infringement claims in that case, so the ruling had nothing to do with willful infringement per se), and follows a couple of other postverdict findings by Judge Ward and Judge Everingham last fall (Centocor v. Abbott and Opti v. Apple) where willful infringement findings by the jury were subsequently set aside - those opinions discuss the law on this point in detail.

I don't mean to imply that there are not rulings to the contrary, of course - just that there are a number of interesting opinions by local judges on this topic, which provide a very useful analysis of how In re Seagate works, and in what types of cases it eliminates willful infringement claims as a matter of law.