Today a Marshall jury in Judge Everingham's court in Function Media v. Google, 2:07cv279, found that defendant Google's AdSense products did not infringe the nine asserted claims of Function Media's two patents. The jury further found that Google had shown by clear and convincing evidence that all of the asserted claims of both patents were invalid as both obvious and as anticipated.
That's a good start to the year for patent defendants in the Eastern District - a JMOL at the close of the plaintiff's case two weeks ago in our Southwest EFuels v. 3T case, and a sweepstakes in this one. Meanwhile, up in Texarkana the jury in the third case heads towards another verdict this week, and jury selection for the February docket of cases is only six days away...
As I previously noted, last week ended with a JMOL in favor the accused infringer in the patent case in trial in Judge Ward's court in Marshall, and Judges Davis and Love's patent cases in Tyler both settled (the former before opening statements, the latter during trial).
This morning the courts reloaded with Judge Everingham starting a patent case in Marshall (after a hot couple of weeks of pretrial motions throwing around all kinds of interesting claims, resulting in a flurry of court orders that I'll get to later) and Judge Folsom picking a jury in Texarkana, also in a patent case.
That's five patent cases all getting at least to voir dire in front of five different judges in three divisions, with magistrate judges handling two of the five trials.
The State Bar of Texas Litigation Section's quarterly publication The Advocate is always welcome to hit my desk - it's one of the few bar-related publication that actually consistently provides me with useful information (the Texas Bar Journal accompanies it in this category) and the editor's color choices are always, well, interesting. The current issue - shown at left - is a screaming hot pink in honor of its topic Women and the Law. It's a terrific issue, and I highly recommend it to Litigation Section members for reading (I'm told we also shipped copies to members of the State Bar's Women and the Lawsectiongratis (perhaps in fear of a infringement action over the issue's title? Hmmm...).
I have reproduced the table of contents below. It won't be available online till the next quarterly issue comes out, but you can always join the Section here and get a copy (although I bet Jennifer Ainsworth would be willing to e-mail you a copy of her very educational article on Texas women general counsel and what they look for in outside counsel, being as she's from East Texas. There are some heavy hitters in this issue, from Fifth Circuit judge Tom Reavley, to jury selection guru Lisa Blue, to a frank article from Kathleen Wu on the status on women in the profession, to a really useful (not for me, of course) "top ten" list of things everyone should know about divorce.
Four Suggestions for the Future by Justice Ruby Kless Sondock & Connie Pfeiffer Gender Discrimination in the Workplace: “We’ve Come a Long Way, Baby” by Katie J. Colopy, Sandra K. Dielman & Michelle A. Morgan What’s Changed for Women Lawyers in the Last Decade? Not a Whole Lot, Frankly by Kathleen Wu Rough Road to Justice: The Journey of Women Lawyers in Texas by Betty Trapp Chapman Texas Trailblazers and Their Texas-Size Balancing of Professional and Personal Success by Sofia Adrogué & Kennon L. Peterson The View from the General Counsel’s Seat: Advice on Business Development and the Attorney-Client Relationship from Texas Women General Counsel by Jennifer Parker Ainsworth The Psychology of Women’s Influence on Juries by Lisa Blue & Robert B. Hirschhorn Making the Practice of Law Work for Women by Karen Hirschman Top 10 Things Every Woman (and Her Husband) Should Know Before Filing For Divorce by Kelly McClure An Odyssey of Talent at the Bar by Judge Thomas M. Reavley
Of course the issue also contains the regular items:
Evidence & Procedure Updates by Luther H. Soules III & Robinson C. Ramsey From My Side Of The Bench by Judge Randy Wilson
Realtime Data v. Packeteer, Inc., 2009 WL 4782062 (E.D. Tex. Dec. 8, 2009)
Judge: John Love
Holding: Motion to Strike New Invalidity Theories Granted-in Part
In this opinion, Judge Love addressed the issue of when a defendant's invalidity contentions should be stricken for failure to comply with the local rules regarding adding new prior art. With respect to two references, Judge Love noted that they had not appeared in any invalidity chart and had not been identified claim by claim and element by element, and rejected the defendant's claim that the plaintiff was "on notice" of these references. (Ever wanted to know how many references generate an "impossibly high number of combinations"? Judge Love says 500 gets you there). On a third group of references, however, Judge Love concluded that sufficient notice had been provided. But in doing so, he rejected the claim that a defendant can "reserve the right" to combine any of the references it provides. Such a statement does not "clearly suggest" the combination as required by P.R. 3-3, he held. All of this was rendered somewhat moot, however, by the Court's requirement that in the interest of narrowing the case, defendant Citrix would be limited to no more than five obviousness combinations, to be disclosed within a week, with amended invalidity contentions to follow a few days later. (Ed. note: this case was set for trial in January 2010 and settled shortly before trial).
As district regulars know, January 1, 2010 marked former Chief Judge Thad Heartfield of Beaumont's assumption of senior status. I just received from one of Judge Heartfield's many admirers a copy of this very nice article about the judge from the Jefferson Bar Journal, and thought readers might appreciate it. Download JudgeHeartfieldArticle
I attended a joint meeting of the Metroplex American Inns of Court last night at which the Eastern District of Texas' own Magistrate Judge Don Bush received the Serjeant of the Inn award from the Paul Brown American Inn of Court in Sherman. Other recipients of the honor included Jim Cowles by the Patrick E. Higginbotham Inn, Thomas William Mayo from the William "Mac" Taylor Inn, Roland Johnson (currently president of the State Bar of Texas) from the Eldon B. Mahon Inn, Mark X. Mullin from the John C. Ford Inn, and the Hon. Marilea Lewis from the Annette Stewart Inn (which also hosted the event).
The Inns of Court in Dallas and Fort Worth established the
Serjeants' Inn award to honor their members for long and
meritorious service to the Inns of Court and to the
legal profession. Each of the Inns in Dallas and Fort
Worth (which apparently includes Sherman) can nominate one member each
year and these nominations are announced at the joint
Inns of Court meeting in January.
The origins of the award dates back to a peculiarity of the English court system in the late 15th century. The
Serjeants' Inn in the English Inns of Court
system consisted of those barristers who had
distinguished themselves by their service to their
profession and accomplishments as barristers. A
serjeant-at-law was a superior rank of barrister - in fact until 1875 only serjeants
could be appointed judges (the name serjeant is actually corruption of the
original Latin servientes, literally a servant of the law).
When a barrister was appointed a serjeant, he left his Inn of Court
and joined Serjeant's Inn. As one the speakers noted last night, that part of the tradition was not retained in the Texas award - the honorees remain in their Inn. The picture at right shows the last of the the three Serjeants' Inns, this one on Chancery Lane in London (the first was abandoned in 1498 and the second burned down in the Great Fire in 1666). The Chancery Lane location was similarly abandoned in 1877 and the members returned to their original Inns. So the Paul Brown Inn gets to keep Judge Bush.
Southwest Efuel Network, L.L.C. v. Transaction Tracking Technologies, Inc., 2:07cv311 (Ed. Tex., Jan. 13, 2010) Judge: T. John Ward Holding: Defendant's Motion for Judgment as a Matter of Law GRANTED It took Judge Ward just a day to get the parties a written order memorializing his oral ruling granting defendant's JMOL yesterday morning. In his order, Judge Ward first concluded that "[t]he undisputed evidence shows that the accused 3T software product does not infringe the asserted method claims. On cross-examination, Plaintiff’s technical expert conceded that the accused product does not perform the “sending” step of subpart (f) of independent claim 1. On cross-examination, Plaintiff’s technical expert conceded that the accused product does not perform the “sending,” “calculating,” and “transmitting” steps of subparts (a), (b), and (c)1 of independent claim 6." (Ed. note: Claims 1 and 6 were the only independent claims asserted). The Court went on to conclude that "Plaintiff failed to introduce any evidence that the Defendant actually performed the claimed method. Plaintiff failed to introduce any evidence that any customer of the Defendant actually used the claimed method in the Defendant’s accused product." Key to Judge Ward's holding was the Federal Circuit's recent holding in the Lucent case that based upon the facts presented in that case the evidence was “just barely sufficient” to permit the jury to find direct infringement. Lucent, 580 F.3d at 1318. "In this case," he wrote, "Southwest provided far less evidence on infringement than the plaintiff in the Lucent case. There, the plaintiff presented evidence that the defendant had instructed its customers to use the accused products in an infringing way, and there were instruction manuals distributed by the defendant showing such use. Accordingly, the Court finds that Plaintiff provided no direct or circumstantial evidence of infringement for a reasonable jury to find infringement." Judge Ward went on to grant JMOL as to the claims of contributory, inducing, and willful infringement.
Joe Mullin with IP Law & Business has a great article discussing the recent i4i v. Microsoft case with some of the jurors. The upshot is that in the jurors' mind the case wasn't even close - after they heard the facts they were convinced Microsoft was infringing i4i's patent, and weren't complimentary of the way Microsoft put on its case (juicy details in Joe's article). (They understandably didn't mention its failure to make a FRCP 50(a) motion, which is what the Federal Circuit would later focus on, as I've previously posted).
The point that I hope comes across in the article was something that I saw this week in our trial in Marshall and that is that if you weren't in the courtroom, as the jury or judge is, in my opinion you simply can't judge what the jurors did in a particular case (with the possible exception of appellate judges, who have the full record and adversarial briefing to inform them of what happened in a particular case). Joe writes that once the trial ended, one of the jurors went online and read what others were saying about the case “They talked about stupid people in Texas, ignorant people in Texas, on a lot of the blogs,” the juror said. "They talked about how patent companies were coming to Texas because there were dumb people on the juries.” But those people didn't hear the testimony in the case, she emphasized. "If you sat through that trial at all, you would know, it was just so clear cut. They weren't there. They didn't know. If they had heard what I heard, they could not have come up with any other verdict.”
I think that point is worth emphasizing, because as anyone who watches jurors - as we did this week - knows (as opposed to those who opine about a trial they didn't attend, a jury they never saw, and a case they know only by reading a press clipping) jurors work awfully hard to understand the facts and to follow the law, and while I don't always agree with them (usually when I lose), I've never yet seen a jury who wasn't trying its dead-level best to do its job, and whose decision I couldn't understand based on the facts I watched presented to them.
I would like to congratulate my cocounsel Joel T. Beres, James ("Randy") Michels, William C. Ferrell and Melissa C. Hunter of the Nashville, Tennessee firm of Stites & Harbison, PLLC for achieving a win for our client Transaction Tracking Technologies, LLC ("3T"), which was a defendant this week in the trial of a patent infringement case before a Marshall jury in Judge T. John Ward's court. Today, Judge Ward granted 3T's motion for judgment as a matter of law (JMOL) at the conclusion of the plaintiff's case in Southwest EFuel Network, LLC v. Transaction Tracking Technologies, LLC, 2:07cv311, finding that the plaintiff had failed to adduce evidence sufficient to go to the jury as to direct, contributory, inducing, or willful infringement. 3T dismissed its declaratory action counterclaims of noninfringement and invalidity without prejudice following the ruling. The winning trial team proceeded to analyze the Court's ruling at Marshall's Blue Frog Grill with 3T CEO Cathy Isaacs and trial graphics specialist Charlene Agnew of Advanced Litigation Solutions, Inc. (Don't we look like we're analyzing?)
The case began trial before the Marshall jury on Monday, January 11, and the Rule 50 motion by 3T was granted at the close of the plaintiff's case in chief midmorning of the next day, January 12. I had a great time working with this exceptional trial team, and was happy to see the client obtain such a great result. Incidentally, this is my first use at trial so far this year of the new 2010 O'Connor's Federal Rules * Civil Trials rulebook (which is purple camo this year), which came in handy during the brief trial looking up, well, standards for JMOLs, for one thing, although I was also researching some questions regarding use of depositions at trial using it when the case ended.
Southwest EFuels was one of possibly as many as five patent cases starting trial this week (or perhaps next) in the Eastern District of Texas. I just saw that the case in Judge Davis' court in Tyler announced settled today shortly before opening statements were set to begin, but I believe that there are still cases proceeding in Judges Everingham, Love and Folsom's courts.
Yesterday in In re Vtech Communications, Misc. Docket No. 909 (Jan. 6, 2010) the Federal Circuit
denied a petition for writ of mandamus directed at one of Judge
Folsom's orders denying transfer. The opinion affirmed Judge Folsom's reliance in Motorola v. Vtech on his familiarity with the case (he had concluded the claims construction process) and faulted Vtech for not "actively and promptly" pursing the motion to transfer before the district court had invested considerable time and attention on discovery and completing the claims construction process. (Ed. note: I haven't checked, but it may be that the motion was not filed until after VW and TS Tech came out, at which point the case would have been over a year old. But according to TS Tech, In re VW didn't change the law in the Fifth Circuit with regard to venue (no seriously, it said that), so perhaps the court decided that shouldn't provide any justification for a party's deciding only at that advanced stage to file a motion). Interestingly, a related argument was made in the Federal Circuit's prior mandamus denial in In re Telular this spring, in which it faulted the petitioner for waiting months after the order denying its motion before it sought mandamus relief (it, too waited until In re TS Tech came out, despite the fact that Judge Ward's orders denying transfer in the TS Tech and Telular cases came out on the same day).
The court also noted that unlike Genetech in which there were no witnesses in Texas, in this case there was at least one identified nonparty witness who was a resident of the Eastern District of Texas. There was also a source of documents in San Antonio and some of the witnesses were in fact closer to Texas than to Oregon. Taking all of this into consideration, the Federal Circuit concluded that because "the facts are rationally capable of providing reasons for what the district court has done", mandamus should not issue, which would interfere with the approaching trial date.
There is a happy ending - apparently by coincidence the parties jointly asked Judge Folsom to stay the case yesterday as well, which may be an indication that the case has settled.
By my count that's seven Federal Circuit venue
rulings this year, with four petitions for writs of mandamus granted and three denied.
