Judge: John Love
Holding: Request for Early Markman GRANTED
Yes, patent lawyers across the nation are brushing up on their "rifle shot" skills following Judge Davis' Parallel Networks opinion last month. As local practitioners are aware, (as well as readers of IP Law 360 last week I noticed) life in multidefendant patent infringement litigation has taken a new and exciting turn in Judge Davis and Judge John Love's court, with the "third conference" scheduling conference providing the parties with an opportunity - even the obligation - to inform the Court of any possible new case management tools that could be used to handle these complex cases more efficiently. In the first major order coming out of these hearings, Parallel Networks, Judge Davis set an early Markman on three terms the defendants claimed could be case-dispositive and stayed discovery other than that proceeding until he determined if they were. (Notably, however, the case was still set for a normal Markman as well, along with a trial setting, so the "rifle shot" hearing is in addition to - not in lieu of - the normal trial schedule).
Judge Love, who sits downstairs from his former boss Judge Davis at the Steger courthouse in Tyler earlier this month decided to adopt the same "rifle shot" Markman procedure in the Whetstone case at the recent conference with the parties. "During the status conference," he wrote, " Defendants requested an early Markman on three “case dispositive” terms, suggesting that early construction of these terms will allow each party to better evaluate its case moving forward. Plaintiff did not agree that an early Markman was necessary, but did suggest limiting discovery before the currently scheduled October 2011 Markman hearing. After considering the parties’ proposals, the Court finds that an early Markman hearing on the three terms discussed during the status conference is warranted and will prove beneficial." Judge Love ordered the defendants to submit their three claim terms to the Court within four days, and set a Markman hearing on the identified three terms for July 13, 2011. The parties had discussed June but Judge Love agreed to move the hearing back to July since plaintiff's counsel had a trial setting in June. The parties were ordered to meet and confer and propose a briefing schedule and submit any Agreed or Proposed Technical Advisors to the Court by April 25. Pending a claim construction ruling on the three identified terms, discovery was limited to production of user and service manuals of the accused products as discussed during the status conference, as well as the deposition of one representative from each Defendant regarding the accused products and related manuals. After the Court issues its claim construction of the three terms, discovery as to all issues in the case will resume.
I can just see patent lawyers across the country hitting select-copy and then pasting this case cite right after the Parallel Network order in their memos on expedited Markman hearings, since it can hardly be denied that we now have a trend of these type of "rifle shot" Markman proceedings, although whether they will be as successful as the defendants hope is still to be seen.
Now it is not true that an expedited Markman on three terms followed by summary judgment motions of noninfringement will cure colds, but I suspect that there are patent lawyers right now that will argue to the contrary, they are such great fans of the proceeding. I can say that this isn't the only different management technique that I have seen the judges have adopt to date, but it is thus far the most commonly requested and granted - since in some cases obviously a good Markman ruling can permit a summary judgment of noninfringement, as was the case in the Raylon case in Judge Davis' court in December. But there are a few lawyers out there that will reluctantly admit that even a Markman ruling in their favor in a particular case will not support a summary judgment of noninfringement, since fact issues would still remain in their case, and therefore suggest that the judge target something different for a "rifle shot" proceeding - maybe a validity or damages or standing issue. As the saying goes, there are different ways to skin a cat, and some might even disagree that the cat should be skinned in the first place. (But that's an argument for Congress, although the Federal Circuit may be willing to hear it on mandamus). As an irrelevant aside, I remember that the immortal Sam Kinison once protested (between yells) when accused of sacrificing a cat backstage before his shows that "I'm not against cat death - I just don't have the time."
But the order is useful on another topic as well, because Judge Love went on to make some observations about "rolling" document production (shown here in an undated photo from the Marshall clerk's office).
The Court notes a trend in complex patent cases where the parties undertake “rolling” productions of documents and in many cases the most relevant documents are produced near the discovery deadline invariably leading to acrimonious motion practice. Accordingly, while the discovery deadline for all other purposes will remain January 13, 2012, all relevant documents must be produced by December 10, 2011.
Just a helpful note for readers that thought judges didn't notice the character of motion practice in their court. They can assign adjectives just fine, and the ones that don't make it into orders might be even more colorful.