Eastern District of Texas Federal Court Practice

More "Art at Work" - Andy Tindel's office gallery in Tyler

  I was recently taken to task by my friend Andy Tindel over at Provost Umphrey in Tyler for claiming I was high society for having a dozen pieces of original art (not including that by my kids) on display.  He invited me over to his shop to see what he has, and I'm happy to report that if I'm country club, he's Leticia Baldridge.
Andy has on display not just a lot of original artwork that he's painted, in a variety of styles, but also artwork by his mother (complete with ribbons for contests she won), and Longview attorney Glenn Perry's son Marcus.  There's also the gallery of Eastern District judges in the kitchen (an odd choice some might say, but you know, I have to say that Judge Steger just speaks to a stainless steel refrigerator.  And don't get me started about Judge Guthrie and the toaster oven).  Andy is also working the counterfeit art angle, with a copy he's just made of Van Gough's lost masterpiece (destroyed in World War I) Plen Air.  (Oh, wait, was I not supposed to say that...) 

Twombly and Patent Pleadings in the Eastern District of Texas

FotoMedia Technologies, LLC v. AOL, LLC. et al, 2:07-cv-255 (E.D. Tex. Aug. 29, 2008)
Judge: Chad Everingham
Holding: Report and Recommendation that Motion to Dismiss / for More Definite Statement Be DENIED
One of the more intriguing questions in federal litigation in the past year in general (patent litigation included) has been what effect the U.S. Supreme Court's recent opinion in Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007) regarding pleading standards will have.  There have been numerous motions filed in patent cases (as well other types of litigation) seeking to dismiss or for more definite statement based on the degree of factual allegations in the plaintiff's petition.  There hasn't been a great deal of published caselaw from the judges in the district on this point (although there are unreported opinions on the subject), so this opinion is of particular interest.
In his report and recommendation recommending that a Twombly motion to dismiss or for more definite statement be denied in a patent case pending in Marshall, Judge Chad Everingham addressed the issue.  Judge Everingham observed that Rule 8(a) requires that a complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). He then went on to note that the example given in Form 16 (which covers patent infringement) of the Federal Rules of Civil Procedure provides simply that "Defendant has for a long time past been and still is infringing [the patent-in-suit] by making, selling, and using electric motors embodying the patented invention, and will continue to do so unless enjoined by this court." FED. R. CIV. P. app. Form 16.
 After reciting the well-recognized law that a motion to dismiss under rule 12(b)(6) is “viewed with disfavor and is rarely granted.” Lowrey v. Texas A&M University Sys., 117 F.3d 242, 247 (5th Cir. 1997). the Court put the contention everyone's interested in on the table.

Although the defendants cite to Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007) to suggest that a plaintiff must plead specific facts to support the elements of an indirect or willful infringement charge, the Federal Circuit recently considered the issue, albeit in the context of a pro se plaintiff, and rejected the argument that Bell Atlantic changed the pleading requirements of Rule 8(a) in patent infringement cases." McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1357 n.4 (Fed. Cir. 2007)). "What is required is that the pleading give “the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007). In a patent infringement case, “a patentee need only plead facts sufficient to place the alleged infringer on notice as to what he must defend.” McZeal, 501 F.3d at 1357.
 Under rule 12(e), “[i]f a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading.” Fed. R. Civ. P. 12(e).

After considering the plaintiff's allegations regarding willful and indirect infringement (and note that the defendants' motion was limited to those two allegations, not direct infringement, identification of infringing products, etc.) in that case, Judge Everingham concluded that "the allegations are sufficient to state a claim for indirect infringement and willful infringement, and the appropriate vehicles for clarification of the allegations are the disclosures mandated by the Local Patent Rules and discovery conducted under the Federal Rules of Civil Procedure."  Judge Everingham also recommended denial of the motion for more definite statement under Rule 12(e), noting that the pleading was not so vague that the defendants could not reasonably be required to frame a responsive pleading.
Again, this is a report and recommendation recommending denying the defendants' motions to dismiss or for more statement with regard to the plaintiff's allegations of willful and indirect infringement on the grounds that they are insufficient under Twombly. 
By the way, the artwork is Leda and the Swan by artist Cy Twombly.  No relation to the named plaintiff (that I know of).  Just thought I'd brighten everyone's afternoon with a little art that's at least marginally related to the subject matter of the post.

Claims construction not changed in subsequent case

LaserDynamics, Inc. v. Asus Computer Intern., 2008 WL 3914095(E.D.Tex. Aug 18, 2008)
Judge: Chad Everingham
Holding: Motion to Modify Claim Construction ruling  DENIED pretty much.
The parties in this case asked Judge Everingham to modify certain of the claim construction rulings regarding this patent contained in a prior Markman ruling by Judge Ward in a prior case.  Judge Everingham did not change any of Judge Ward's constructions, but did address some issues not contained in the prior construction.

Texas Bar Journal editorial board

SBOT President Harper Estes appointed me to one other thing this year, and that was to return me to the editorial board of the Texas Bar Journal, this time as vice chair.  I was originally appointed to a three year term on the TBJ board by then-president Eduardo Rodriguez when I joined the Bar board in 2005 as his appointment - each Bar president appoints one incoming director to the editorial board.  I rotated off, but Harper asked me to come back on as vice chair.  I recently met with TBJ editorial board chair David McAtee and editor Kevin Priestner in Dallas about some of the great ideas they have for the TBJ this year, and am looking forward to our first full meeting of the editorial board next month.
Once again, I'm posting here to solicit comments about the Texas Bar Journal - if you've got gripes, kudos, or ideas, just drop me a line.

State Bar of Texas Committee Review Task Force

State Bar President Harper Estes recently appointed me to the State Bar's 2008-09 Committee Review Task Force.  Briefly, as part of the State Bar's last sunset review before the Legislature, the Bar was required to review its standing committee structure at least biennially to ensure that the committees in place are needed and don't overlap, and that the policies governing those committees are appropriate.  Our first meeting is next week, at which time the committee chair, SBOT president-elect Roland Johnson will get us organized (actually the staff has already done that) and we'll start work.  Each member of the committee has been assigned two or three committees to review - in my case I will be doing some of the committee's legwork on the Law Practice Management, Local Bar Services and Public Affairs committee.  Our committee will work through the fall and eventually submit a report to the State Bar Executive Committee and to the entire Bar board in January 2009.
I look forward to working on the committee, and to another chance to work with some of my good friends who are still active with the State Bar (and readers may know, I rotated off the Bar board in June, but sometimes they just won't let you go...)
The reason I am posting on this here is to solicit any input any readers have on the State Bar's standing committees.  If you have any comments or input you want, just shoot me an e-mail and I'll either take it or put you in touch with the right people.

epicRealm patent case tried to verdict in Texarkana

Friday late afternoon Judge Folsom charged the jury in the case formerly known as epicRealm (plaintiff is now named Parallel Networks, LLC) against defendants FriendFinder and Various, Inc.  As I posted recently, a number of the claims in this case were summary judged out recently, and the remaining claims were tried to a Texarkana jury (oneof the defendants was severed out into a later trial - the rest have settled).  Parallel Networks contended that the defendants infringe claims of two patents by providing Internet web pages using techniques covered by the patents-in-suit, within the United States, and sought damages in the form of a reasonable royalty.  FriendFinder and Various denied the plaintiff's contentions regarding infringement, and asserted that the claims of the patents are invalid.  There was a claim of willfulness, but it was dropped prior to trial.

The jury's deliberations were not without drama - almost immediately on Friday the jury started sending notes saying they could not reach a verdict.  Judge Folsom issued an Allen charge yesterday (call your local counsel to ask what those are) and there were several notes from the jury to the effect that they could not reach a verdict.  A couple of hours after the Allen charge the jury finally returned a verdict for the plaintiff, i.e. that the patent was infringed and was not invalid.  The damages were $1,257,000 million, which I'm advised was the defendant's damages model - the plaintiff had asked for $60 million. 

"Practicing in Federal Court: 2008 Update" - ED Tex Local Rules meet Origami at a Northeast Texas Association of Paralegals meeting

   This afternoon I spoke at the NTAP monthly meeting on the subject to Practicing in Federal Court - 2008 Update, mainly about recent amendments to the local rules as they affect paralegals.  While preparing my talk it occurred to me that the papers attendees get at these meetings really aren't very useful when they get back to their desk.  I thought maybe I could do something about that, so I prepared an oddly arranged double-sided handout and at the end of the presentation showed the attendees how to fold it into a little origami box for their desk that on one side has my personal checklists of the requirements of the new certificate of conference and application for extensions of time to answer rules, on the sides has phone numbers for all the ED clerk's offices, and all the necessary websites (ED Tex clerk, PACER, CM/ECF, Fifth Circuit), and on the bottom a concise directory of all the ED Tex judges by division with their secretaries, phone numbers and law clerks (the latter only for the NE Texas divisions - I didn't have legal size paper).  Special thanks to my paralegal Pam Matthews for advising me on what information paralegals would actually find useful on - well, on whatever this thing is.  It also has the EDTexweblog banner, the ED Tex seal and a little cartoon of a lawyer and a judge, so it's functional, informative, and entertaining.  How many CLE papers can you say that about?
No, don't ask me for copies - outside our firm's offices the only people with copies (and, more importantly, instructions on how to make the box!) will be the NTAP members who showed up for my talk despite the rain this afternoon.
And no, I really don't know where I come up with these ideas either.  I have three boys (ages 9, 6 and 6) and they all think like this too.  God help my wife.

Motion for Summary Judgment of Noninfringement Granted In Part, Denied in Part; Motion to Strike Expert Declaration Granted

EpicRealm, Licensing, LP and Parallel Networks LLC v. Autoflex Leasing, Inc., et al; No. 5:07-cv-125-DF; and EpicRealm, Licensing, LP and Parallel Networks LLC v. Various, Inc.; No. 5:07-cv-135-DF (consolidated)
Judge:  David Folsom
Holding:  Defendants' Motion for Summary Judgment of Noninfringement GRANTED IN PART AND DENIED IN PART;  Defendants' Motion to Strike Plaintiffs' expert's declaration, including opinions stated in the declaration, and all new evidence relied upon GRANTED.
This opinion isn't published (yet) but I thought might be of interest to readers.  Judge Folsom granted in part, and denied in part, the defendants' renewed motion for summary judgment of noninfringement with respect to the Plaintiffs' four theories on how the "releasing" limitation is satisfied in the accused systems at issue in the suit.  In their response, Plaintiffs withdrew three of their four "releasing" theories from presentation at trial and therefore, Judge Folsom granted summary judgment in favor of defendants on those three theories.  With regard to Plaintiff's remaining "releasing" theory, Judge Folsom found that a "reasonable version of material fact upon which the nonmovant could prevail" existed and therefore denied summary judgment in Plaintiffs' favor as to their one remaining "releasing" theory. 
In their reply brief, Defendants incorporated their motion to strike the supplemental declaration of Plaintiffs' expert (which was supplemented by Plaintiffs only four days before jury selection and seven days before trial was set to begin).  With regard to Defendants' motion to strike, the Court found that: 1) Plaintiffs had failed to adequately explain the late supplementation of their expert report; 2) allowing Plaintiffs' expert testimony would prejudice Defendants; 3) there was no possibility of curing the prejudice by continuance since Plaintiffs continually opposed a continuance at both the preliminary pretrial conference and the final pretrial conference; and, 4) the importance to Plaintiffs' case of their experts testimony regarding the source code he analyzed was outweighed by the other three factors cited above.  Therefore, Judge Folsom granted Defendants' motion to strike and the expert's supplemental declaration and the new evidence on which he based his opinions were excluded from consideration.

Final judgment entered in Pressure Products case

Pressure Products Medical Supplies v. Quan Emerteq Corp., No. 9:06cv121
Judge: Ron Clark
Holding: Final Judgment
In June of this year the Beaumont jury in Judge Clark's court (passing on a Lufkin case tried in Beaumont) returned a verdict in Pressure Products Medical Supplies v. Quan Emerteq Corp. No. 9:06cv121.  It found that both of the products infringed all of the asserted claims, but that none of the infringement was willful.  The jury found that the defendant had failed to show by clear and convincing evidence that any of the asserted claims were invalid as obvious or anticipated, and assessed damages at $1.1 million.
Judge Clark conducted a hearing hearing on the post-trial motions for July 31, and today entered judgment awarding the plaintiff the $1,100,000.00 in damages found by the jury for infringement; pre-judgment interest from 7/31/04 through 8/15/08 in the amount of $309,992.00; attorney's fees in the amount of $104,206.00; post judgment interest on the entire sum calculated pursuant to 28 USC 1961 at the rate of 2.23% and costs of court. (Parenthetically, that's not a rogue decimal point in the attorney's fees - despite the AIPLA study referenced in Mary Alice Robbins' article, which is cited frequently, this case was tried through verdict for fees of $104,206, half a million less than the estimated cost for a case in which less than a million was at stake.  One wonders- or more precisely one who isn't familiar with the efficient manner in which Judge Clark manages the patent cases in his court might wonder - what happened to the other half million?).  Judge Clark further entered an injunction prohibiting the defendant from selling certain infringing products, but stayed the injunction for a certain product if the defendant deposits royalties into an escrow account.
Since there has been some interest recently in time to trial in patent cases, I thought I would mention that this case was answered on October 19, 2006 - that's 22 months and one day from answer to final judgment following a jury trial.  Again, this is a Lufkin case tried in Beaumont, not a Marshall case.

Digital Voice Recorder

  I received a lot of e-mails after my Starting a New Law Office article ran in the Texas Bar Journal about my solution to the dictation issue, so I thought I'd reprint what I told people.
To recap, like most lawyers I'm used to having a DictaPhone system for dictating everything from time to letters to briefs.  When I first moved out I entered my own time directly into my billing software, but in a matter of days my right forearm started to threaten to fall off, so I realized I had to get something to get the typing to my secretary.  I wasn't about to incur the expense of installing a DictaPhone system (which is unspeakably obsolete anyway) and had always thought that there ought to be a digital equivalent (setting aside for the moment voice recognition software, which would take way too long to learn, and is not really necessary if you have an assistant), so I went looking.
What I use is a RCA RP5022B handheld digital voice recorder, 64 meg capacity.  I picked it up at Wal-Mart for $30 something (it's now $29.54) and it's been a lifesaver.  I plug it into a USB cable I keep plugged into my laptop's docking station and transfer the current file periodically to a folder on the server where my paralegal is expecting it.  I dictate a while, switch it off, then with several buttons I can resume dictating at the end of the file I left off.  We both have the software included installed and she plays it on that (it'll slow or speed up, which my nine year old thinks is cool - probably not as versatile as a foot pedal but she can type way faster than I can drawl the words out, so it isn't a problem).  Uses two AAA batteries so we have four on a recharger in the supply room/kitchen and I'm always switching out (but I carry a couple of real batteries on trips, since rechargeable battery life is very short).  Since I can get to my server via VPN I can record anywhere (for example in an airport waiting for a flight) and transfer anywhere I have a connection.   If the VPN is down I just e-mail the file to her. If I had multiple attorneys working out of the office (which was the question from several readers), I'd give each one one of these, and have them periodically upload the dictation files to a central location.
Only complaint I have is that I wish it uploaded new files from the handheld automatically when plugged in, like a camera does, and that some of the functions required one button press instead of several - but that's it.  I know there are many ways of handling dictation, and in larger firms I'm sure there are more elegant ones, but this works just great for my setup, and I highly recommend it.