Patentee Must Enforce
infringement is clear
producers making millions
Hybrid Patents, Inc., v. Charter Communications, Inc., Case Number: 2:05-cv-436
Judge: T. John Ward
This patent case was tried before Judge Ward in Marshall last week, and went to the jury this morning. The jury answered "no" on infringement and willfulness, but did not find the patents invalid under any of the three theories advanced at trial.
That's three defense verdicts and two plaintiff's verdicts in the Eastern District this year. Plaintiff's win rate at trial in 2007 now stands at 40%. The two-year stats (for 2006 and 2007 jury verdicts) is now about 61%.
AdvanceMe Inc v. RapidPay LLC, 6:05-cv-424
Judge: Leonard Davis
This bench trial concluded on day 5, with each side using a little under 11 hours (which I assume was the time alloted). Judge Davis took the case under advisement, and will be issuing findings and conclusions on it in the near future.
Patterson v. Nexion Health, Inc., 2007 WL 2021327(E.D.Tex. Jul 09, 2007) (NO. CIVA 2-06-CV-443 TJW)
Judge: T. John Ward
Holding: Defendant's Motion to Transfer GRANTED
This is a medical malpractice case arising out of care provided to the Plaintiffs' decedent while a patient at the Defendant's facility in Sherman, Texas. Judge Ward granted the defendant's motion to transfer the case from the Marshall Division to the Sherman Division. Critical to the Court's decision that the relevant factors weighed substantially in favor of transfer in this ase were his findings that the numerous witnesses which this case concerning the decedent's health care would require were located only a couple of miles from the courthouse in Sherman, but over 180 miles from the courthouse in Marshall. Judge Ward also noted that there was a local interest in the case in Sherman since it involved health care provided by Sherman providers to the Sherman community.
Juniper Networks, Inc. v. Toshiba America, Inc., 2007 WL 2021776(E.D.Tex. Jul 11, 2007) (NO. 2:05-CV-479)
Judge: T. John Ward
Holding: Sanctions order
These sanctions have been out there since the hearing on June 14, and Judge Ward issued the order last week memorializing them. In short, Judge Everingham found, and Judge Ward agreed, that the defendants had withheld source code as "unavailable" and indicated that it was in the possession of third parties, when in fact it had the source code and did not produce it because it believed it was not relevant. Judge Ward found that the defendants willfully and intentionally violated the court's amended discovery order, and that the their conduct constituted discovery abuse. As sanction for the defendants' conduct, the court
1. Limited the defendants' time for voir dire to one-half of the amount of time that of the plaintiff;
2. Removed two juror strikes from the defendants, leaving them with a total of 2, while the plaintiff keeps four;
3. Limited the defendants' time for opening statements to one-half of the plaintiff's time;
4. Limited the defendants' time for closing statements to one-third of the plaintiff's time;
5. Prohibited the defendants from proffering any expert testimony or opinion from any source during trial regarding non-infringement, except through cross-examination of the plaintiff's expert witnesses;
6. Will instruct the jury that the court found that the defendants intentionally withheld documents from the plaintiff in willful violation of a specific court order to the contrary, and that the jury is entitled to consider this fact when determining the credibility of any witness called to testify in this matter; and
7. Awarded attorneys fees and costs to the plaintiff that are attributable to the defendants discovery abuses.
Saw some interesting statistics today that I thought I'd pass along.
Since 2000, the Eastern District has had some 861 patent cases filed. During that time period, Judges T. John Ward (most of Marshall and a small part of Texarkana) and Leonard Davis (most of Tyler and parts of Lufkin and Sherman from time to time) have shared approximately 62% of that docket, or 541 patent cases, and with the exception of one term in one Markman ruling by Judge Ward, which did not require reversal, neither has ever been reversed by the Federal Circuit - not on a claims construction ruling, not on a discovery ruling, not as a result of mandamus, or anything else. (Neither has Judge Clark incidentally, which would raise the rate to 71% of the cases handled during that time period, and 76% of current filings) but in fairness, he has had only two cases appealed of the two dozen or so he has closed since starting handling patent cases, and neither has been decided). That's over five hundred patent cases handled without a reversal on appeal in the past seven years.
Some commentators would say that this points to the expertise that these judges with substantial trial experience have developed handling patent cases, and the efficiencies that are achieved by having experienced judges handle these complex cases. I keep think there's got to be another connection - surely it can't just be that Judge Davis and Judge Ward both attended Baylor Law School.
Like many others, I was sad to see native East Texan Lady Bird Johnson's passing this week, but for somewhat more personal reasons. I met Mrs. Johnson when I was a graduate student at the LBJ School working in Washington for her daughter Lynda Robb on the National Commission to Prevent Infant Mortality in 1988. As a fellow Marshallite I claimed (demanded, really) the privilege of escorting her into a auditorium at an event that fall (a pretty neat experience for a young college student), and visited briefly about people we both knew from Marshall - she of course is from just outside Marshall, and graduated from Marshall High School about fifty-five years before I did. It's amazing how familiar she seemed - she sounded and acted just like every little old lady I grew up around - once she looked at you and said something it was impossible to think of her as a former First Lady - she was just like my grandmother's bridge friends, around whom you were supposed to be on your best behavior. And I tried very hard to be.
The following spring I shared the stage with her at my graduation when I introduced our speaker, White House Director of Personnel Chase Untermeyer at my graduation ceremony at the LBJ School (I introduced him as a "kinder and gentler" commencement speaker, which was somewhat funny, if I do say so myself, coming right after the first President Bush's election). I visited with Mrs. Johnson backstage, and then after the ceremony when I introduced her to my family as "that lady that I got to work with last summer in Washington."
I include this picture of her meeting my mother because this is exactly what she was like - she made eye contact with you and spoke to you as if you were the only person in the world, and you just knew - being from the same corner of the world - that's that's how she had been raised - to be courteous and polite because that's what your family expected of you, and you eventually came to expect of yourself. She was also quick to laugh - this picture is one of my favorites. Here are a few others of her meeting my sister Emily - yes, that's what Texas hair looked like in 1989.
About six years later in the fall of 1995 I received a call early one Sunday morning when Mrs. Johnson was in town and needed someone to let her into the Harrison County Historical Museum in the old county courthouse in Marshall to check on a dress and some other items she'd donated to the museum in 1965. I was the museum's immediate past president, but the only person they could find that had keys to the building and knew where everything was (we'd just completely redone our exhibits). The very interesting details of the visit are in the attached story from the paper at that time Download lady_birds_hchm_museum_visit.pdf (including the Secret Service's having to come to my office the next day to pick up her cane, which she'd left), but it was at that visit that she realized that while we had one of her red silk inaugural ball gowns, LBJ's suit with it was a brown business suit. (Her eyes were bad, but not that bad!) She immediately got us a black tuxedo of President Johnson's, so that our display now has an appropriate counterpart to her gown. We also spent several hours going through the museum's other collections and I narrated what we had at her request. I didn't realize at the time how bad her eyesight was, but it was an interesting experience trying to narrate what was in the display cases of a small county museum to someone who had seen probably more of the world than anyone else I'd ever meet (we had George Forman's heavyweight championship belt and one of Bill Moyers' Emmys - other than that we were pretty heavy on old china and oddball collections). But again, it was exactly like talking to one of my grandmother's friends - I'd been around little old ladies like her all my life. We pulled out her old report cards from high school, and Secret Service staff detail really perked up - they were immensely pleased to see that she had not always had perfect conduct grades.
And I'll always remember the conversation we had about Sam Houston in the military room while looking at one of his 1860 gubernatorial campaign posters - because as I later realized, the conversation wasn't really about Sam Houston at all. I think what I was getting was an echo of what LBJ thought of himself after when he was stomping around the ranch after he left the White House, and I have wondered ever since if any LBJ historians have picked up on that - that he thought he was a misunderstood hero in much the same way as Houston, who was the father of Texas the nation and state, yet by the time of his death he was almost universally hated within the state.
Almost anyone in Texas knows the debt we owe to Lady Bird every spring for the wildflowers that line our highways, and I certainly know the debt I owe her family for what I get to do for a living and where. If it hadn't been for her family I wouldn't have attended graduate school at UT Austin, where I studied under Professor Barbara Jordan, who encouraged me to attend law school, and then recommended me for a clerkship with her former congressional colleague Sam B. Hall, Jr., who was by then a federal judge in Marshall, which was where I really wanted to practice. But above all else, we all owe a debt to Lady Bird for her graciousness and kindness and dignity in the public eye over half a century, and under extraordinarily trying circumstances. Having met and spent a little time with her is something special to me, which I look forward to telling my kids and grandkids about for a long time to come.
TGIP, Inc v. AT & T Corporation et al, 2007 WL 2021742, 2:06cv105 (July 10, 2007)
Judge: Ron Clark
Holding: Motion for Summary Judgment of Noninfringement GRANTED
I'm out of town preparing for an oral argument, but just saw this opinion from Judge Clark come out, and thought there might be some interest in it. Defendants sought summary judgment that their calling cards did not infringe the plaintiff's patents. Judge Clark agreed and granted the motion, holding that Defendants' U.S. South and InComm wireless top-up cards, including InComm's T-Mobile and Cingular wireless top-up cards, do not infringe the '114 patent or the '768 patent.
I have been following the progress of the patent legislation in Congress recently, and what representatives and senators' offices are telling me is that they are being told - repeatedly - by some lobbyists and corporate officials that although they agree that the Eastern District of Texas offers good judges, who are experienced and hardworking, and fast trial settings that save both sides a lot of money, "defendants just can't win there."
As anyone that actually works in the patent docket can tell you around here, that just isn't true. Defendants have won half of the patent cases tried in the Eastern District this year, and the plaintiff's win rate in 2006 and 2007 combined is still only 66%. And as readers of my blog know, even the rulings in patent cases that I post on often show defense wins on summary judgment or other rulings.
So the next time someone tells you that "defendants just can't win in the Eastern District of Texas", send them this link - Patent Cases: Recent Rulings for Defendants. It isn't exhaustive, and isn't meant to indicate any predisposition by any of the judges or the district as a whole (and no, I'm creating another tab for wins by plaintiffs - do your own homework). It's just meant to give readers the ammunition to explain to their elected officials, and to anyone else that is interested, that defendants can and do win here, and that the outcomes have a lot more to do with the facts of the case and the quality of the lawyering than they do any perceived tendencies by the judges or juries. Stop and think about it - a lot of people have a vested interested in saying that defendants can't win here, whether it's to try to eliminate an efficient court for resolving IP disputes, or to explain away bad results due to lack of trial experience or poor preparation. I would encourage anyone who's trying to decide that question to look past the lobbying at the facts, and I hope this helps do that. I'll add some selected recent rulings for illustrative purposes, but frankly, there are enough new ones coming out to populate this category pretty quick.
The first entry is a two-fer - a recommendation by a magistrate judge that a motion for summary judgment of infringement be granted, and that the summary judgment of invalidity be denied. Both recommendations were accepted by the district judge in a thoroughly reasoned opinion.