Eastern District of Texas Federal Court Practice

13th Annual Advanced Patent Law Institute - Austin, Texas

Today and tomorrow I'm attending the UT CLE Advanced Patent Law Institute in Austin, Texas.  Today's highlights (for me) was an very good presentation on Forum Selection and Local Rules by John Torkelson of Carrington, Coleman, and a judicial panel with Judges David Folsom and Judge T. John Ward of the Eastern District of Texas, and Judge Lee Yeakel of the Western District of Texas.  (Ken Adamo from Jones Day did the usual very good patent law update while haranguing the audience).
The sessions I was really looking forward to tomorrow were Stanford law pro Mark Lemley's presentation on his preliminary findings from a extensive survey on patent litigation data (the graphs on the handout are really, really good) and Jones Day's Hilda Galvan's presentation on the care and feeding of joint defense agreements, but I've had to move my flight home up after realizing that tomorrow is Halloween, and I really, really need to be home to help shepherd our astronaut, Sponge Bob, and Thomas the Tank Engine around the neighborhood.

Federal Circuit Reverse Position on Business Method Patents in Bilski

Thought readers might be interested in this - as just reported, earlier today the Federal Circuit largely disavowed business methods in the Bilski case - for more information, see here.

The Plaintiff Strikes Back: Eastern District Jury Returns $59 Million Verdict in Patent Case

The back and forth of patent verdicts in the Eastern District continues (not that that's exactly news).  After back to back defense verdicts in patent cases in recent weeks the plaintiffs scored a win yesterday in Pioneer v. Samsung, 2:0cv384.  A Marshall jury in Judge David Folsom's court found that the eleven accused products infringed all four asserted claims.  The jury also found willful infringement by clear and convincing evidence, and declined to find that Samsung had proven invalidity by clear and convincing evidence.  Damages totalled approximately $59.3 million.

Defense Verdict in Lufkin Patent Case; Noninfringement and Claims Invalid

On October 7, a Lufkin jury in Judge Clark's court rendered a defense verdict in the Candela Corp. v. Polmar Medical Technologies case, 9:06cv277.  The jury found their neither accused product accused any of the asserted claims. 
Wait - the fun is just starting for these claims.
As for invalidity, the jury found that the defendant had shown by clear and convincing evidence that all four claims were invalid as anticipated by one of the four references listed (it found the defendant had not so shown with respect to the other three). The jury also found that the defendant had shown by clear and convincing evidence that two of the claims were invalid as obvious in light of four combinations of references.  The jury did decline to find for the defendant on a question re: enabling (assuming that they could follow a thicket of double negatives).
For those counting, that's back to back verdicts in Marshall and Lufkin of noninfringement and invalidity.

Oops!: Mistakenly-Filed Documents Sealed, Not Removed from Clerk's File

Motorola, Inc. v. Analog Devices, Inc., 2003 WL 25778434(E.D.Tex. Jun 06, 2003) (NO. 1:03-CV-131)
Judge: Ron Clark
Holding: Joint Stipulation Regarding Removal of Documents from District Clerk's File GRANTED in part.
Ever had one of those days?  One of the parties in this case realized shortly after filing that the document filed contained some interlineations and notes that it considered confidential and privileged.  The parties agreed to ask the Court to remove the papers from the clerk's office' file.
Not so fast, Judge Clark held.  "As the parties provide no basis in law for the removal of documents from a judicial record, and the Court finds none on its own, the Court will only decide whether to place the documents under seal. Courts have recognized that the public has a common law right to inspect and copy judicial records."  Judge Clark reviewed the facts and decided that the parties had made a sufficient showing and sealed the documents.

"All The News That's Fit to Blawg" - Panel at CAILAW 45th Annual Conference on Intellectual Property Law

  The Center for American and International Law is holding its 46th Annual Conference on Intellectual Property Law (CAILAW) at its headquarters in Plano on November 10-11, 2008.  More information can be obtained at the seminar's website.    The two-day seminar provides 13 hours of MCLE credit, great topics (check out the brochure) and wi-fi is available in the classrooms (how else could I post about how cool Bart Showalter's "super troll" graphics are during his presentation?) 
Usually there's a panel discussion of federal judges talking about patent litigation, but this year they found something even better.  From 3:30pm-4:15pm on November 10, I will be part of a panel "All the News That''s Fit to Blawg" which asks the burning questions "[a]re bloggers journalists for a new generation? [and] [h]as legal blogging impacted patent litigation?" and promises "[a] discussion of cutting-edge topics by some of today’s leading IP bloggers."  (Does this remind anyone of Broadcast News?).
The discussion will be moderated by Bruce S. Sostek of Thompson & Knight LLP of Dallas (the orange circle folks).  The panel (including me) includes:
Stephen R. Albainy-Jenei • Patent Baristas, Frost Brown Todd LLC (Cincinnati, OH)
Kyle B. Fleming • PATracer.com, Renner Otto Boisselle & Sklar, LLP (Cleveland, OH)
Joe Mullin • The Prior Art, IP Law & Business Magazine (San Francisco, CA)
Michael C. Smith • EDTexweblog.com, Siebman, Reynolds, Burg, Phillips & Smith, LLP (Marshall, TX)
Peter Zura • The 271 Patent Blog, Katten Muchin Rosenman LLP (Chicago, IL)

I'm really looking forward to meeting Stephen, Joe, and Peter, whose work I have really enjoyed over the past few years, and especially Kyle, who has joined my crusade to to include Sam Kinison pictures with our weblog posts as often as possible, even when there's no discernable relationship between the post and the photo.

"Art at Work": October/November 2008 featured artist Sally Martin

Unfortunately I'm a month late posting on it, but last month our office got its customary change of decor, this time to paintings by local artist Sally Martin.  sally specializes in paintings about Caddo Lake.  You can find out more about here on her bio here -

Download Bio.pdf

A list of the pieces on display in our office is attached here -

Download list_of_art.pdf

New Magistrate Judge Position in Sherman

Looking for work due to the credit market crisis?  Spouse getting tired of you issuing reports and recommendations about the housework?  The phrase de novo make you all tingly?
Well, the Judicial Conference of the United States has authorized the appointment of a full-time United States magistrate judge for the Eastern District of Texas at Sherman. The current annual salary of the position is $155,756. The term of office is eight years. A full public notice for the new magistrate judge position is posted in the clerk's office in theWilliam M. Steger U.S. Courthouse and Federal Building, 211 W. Ferguson, Tyler, TX 75702.   It is also available on the court's Internet website, located at www.txed.uscourt.gov.
Interested persons may contact district court clerk David Maland for additional information and application forms.  The application form is also available on the court's website. Applications must be submitted only by applicants personally and must be received  by 5:00 p.m. Tuesday, November 25, 2008.

Fifth Circuit Grants Mandamus in In re Volkswagen

By now the Fifth Circuit's en banc opinion granting the petition for mandamus relief in In re Volkswagen is no longer news - for a good summary of the case holding and effect see Mary Alice Robbins' article in Texas Lawyer here , so I won't add much more, other than to (obviously) state that I agree with Judge Carolyn Dineen King, who sat on the original 5th Circuit panel that considered this case (which denied the petition), who wrote in a dissenting opinion that the majority, in order to grant the mandamus writ, begins by "plucking the standard 'clear abuse of discretion' out of the narrow context provided by the Supreme Court's mandamus precedent and then confecting a case -- not the case presented to the district court -- to satisfy its new standard.".  I couldn't have said it better.
A couple of important takeaways from this article for this weblog's readers are this:
First, quoting Martin Siegel, the article notes that the plaintiff is likely to petition the U.S. Supreme Court for a writ of certiorari.
Second, Mary Alice had a couple of particularly good quotes from practitioners William LaFuze of Vinson & Elkins and Steven Malin at Sidley Austin that I wanted to point up.  First, Bill was named as saying that he does not expect to see many patent cases transferred out of the Eastern District as a result of the 5th Circuit's decision. because "almost every patent infringement suit is distinguishable from the products liability suit against Volkswagen. The 5th Circuit found in the Volkswagen case that the plaintiffs' choice of forum was the only connection with the Eastern District ... But in a patent case, the plaintiff can allege that the manufacturer, distributor, reseller and consumer infringed a patent and that some of those acts of infringement occurred in the Eastern District."  (Quotes from TL, not Bill).
Steve's comments complete the thought - after responding to the headline that law.com previously had on the decision by stating that "there's no get-out-of-jail-free card for the pending cases in which there's been a substantial amount of work" Steve went on to opine that the 5th Circuit's decision will have a negligible effect on plaintiffs who want to file in the Eastern District. "The majority saw the facts in In Re: Volkswagen as 'very stark in favor of Dallas,' because all the contacts in that case are there. But that is an unusual case, he says."  (Quotes TL, not Steve)

Back from vacation

Just got back in the office this morning from an extended vacation - thanks for the numerous e-mails from readers wondering if something was wrong!  Will have posts up on some recent verdicts, interesting opinions, and the Fifth Circuit's opinion in In re VW IIc later today (hopefully).