Eastern District patent docket post on Patently-O

Dennis Crouch's Patently-O website has a good post today on a a couple of recent cases from the ED that cites a couple of recent cases and my most current win rate at trial calculations.  I wanted to post briefly with a couple of additional observations and facts on these cases.
First of all, on the transfer in Weinstein v. UGS Corp: as Dennis notes, this was not a patent case — it was a negligence case against a corporation (albeit headquartered in Texas) for its actions connected with an employee that left work drunk and killed two people - and was subsequently prosecuted in Michigan and convicted of murder.  Unlike a patent case, where the acts complained of occurred in part in the Eastern District of Texas, there are rarely key nonparty fact witnesses clustered in one venue, much less proof of same, and there is not extensive prior litigation on the precise issues in the case (obviously sometimes that happens, and those cases are often transferred) in this case, Judge Ward noted that

The plaintiff has not provided evidence that likely non-party witnesses for this case reside outside of Michigan. The defendant has provided affidavits notifying the court that “virtually every possible witness” for the accident is located in Michigan. Further, it seems that the vast majority, if not all, of the non-party fact witnesses reside in Michigan. For example, Mr. Wellinger is incarcerated in Michigan. The investigating officers in the criminal investigation are located in Michigan as well as the Michigan State Police toxicologist who analyzed Mr. Wellinger's blood sample.
The evidence also shows that substantially all of the defendant's employees who are now known to have personal knowledge of the accident and related facts are located in Michigan. There are roughly twelve UGS employees who gave interviews to the authorities during the criminal investigation of Mr. Wellinger and those witnesses reside in Michigan. UGS employees residing in Michigan likely will testify to matters related not just to the accident itself, but to the knowledge that the defendant's employees had of Mr. Wellinger's alcohol abuse and the resulting actions of those employees. To that point, the plaintiff alleges in the complaint that Mr. Wellinger's supervisor, Mr. Ed Arlin, confronted Mr. Wellinger on the day of the accident to outline the plan that UGS had made concerning Mr. Wellinger's alcohol abuse. Allegedly, Mr. Arlin directed Mr. Wellinger to see a psychiatrist that afternoon and to report back to Mr. Arlin the psychiatrist's recommendations. This evidence is central to the plaintiff's direct liability claims and gross negligence claims because it addresses the remedial steps taken by UGS in response to Mr. Wellinger's alcohol abuse.
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The incident giving rise to this litigation has been extensively litigated in Michigan. It also involves evidence arising from a criminal investigation performed by Michigan law enforcement personnel that resulted in a Michigan resident's conviction for second degree murder. There is a local interest in adjudicating this dispute.

Negligence cases like this get transferred all day long - and always have.  It's the rare case that is based on a major criminal investigation and prosecution, and where, as here, there are literally dozens of fact witnesses that the parties will rely on to prove their cases - as opposed to a battle of the experts on issues that have not previously been litigated.  I've had Judge Ward transfer a case dealing with an injury in a mall where there were half a dozen or so witnesses with really important knowledge about how poeky-outey the thing that put a kid's eye out was - and for how long (sort of a sale-rack equivalent of a slip and fall).  In those cases, for the reasons set forth cogently by Judge Davis in the Network-1 opinion, transfer is pretty common - and always has been. Patent cases  are (usually) very different, again for the reasons Judge Davis sets out.  Just an observation I thought might be useful to put this case into context.

The second part of the post was on Judge Clark's granting the motion for judgment as a matter of law in the TGIP v. AT&T case .  Again, to the extent anyone thought that the local judges were unlikely to examine jury verdicts carefully in patent cases, you haven't been reading my posts or the cases (or listening to your local counsel), because Judge Ward, to take one, has done this following several  trials, granting JMOL motions on particular patents or claims or products when the evidence adduced at trial did not support a verdict (such as in the Acco case) - most recently invalidating a patent (in the Avid case ) for inequitable conduct based on the testimony that came out at trial.  The damages in those cases weren't the headline grabbers this one was, but the general idea that the judges will police verdicts to make sure that the evidence supports the verdict is not a new one.  It may be a useful data point to somebody (not to me) that they'll do it in nine-figure cases as well - and I found the procedural context here quite interesting - that Judge Clark did it using the FRCP 50(a) motion, avoiding the the need for extensive post-judgment briefing.  It was the technical equivalent of a denial - which is what is often seen, since the FRCP 50(b) acts as a backstop after trial, but it provided a useful way to examine the issues immediately after a verdict. 

Just a couple of observations. 

Busy morning in Marshall by the way - Judges Ward and Everingham set around 40-60 patent cases for Markman hearings and trial yesterday afternoon and this morning using the new procedures to get cases moving.  Markman dates run from next July through the following February and trial dates run from February to August 2009.