SSL Services v. Citrix, 2:08cv158 (9/17/12)
Judge: Rodney Gilstrap
Holding: Motion for Interest & Enhanced Damages GRANTED IN PART; Motion for Prevailing Party Status GRANTED IN PART
Today Judge Gilstrap entered judgments in both the patent cases he tried to a verdict this summer. While Ambato v. Garmin just got a judgment, some pre-judgment motion practice in the SSL v. Citrix case required a 14 page opinion to sort out.
The biggest issues was that the plaintiff, having obtained a jury verdict of willful infringement, wanted enhanced damages. Of course the jury verdict was only on the subjective prong - as I've noted previously, Judge Gilstrap was the first trial judge in the country to apply the Bard opinion, which came out the week of this trial. Before charging the jury, the Court issued a finding of objective recklessness (which he noted he'll flesh out when responding to the anticipated JMOL on that issue), and the jury was then asked whether there was clear and convincing evidence of the standard you and I would recognize as the subjective prong of the willfulness test.
But I mentioned enhanced damages. The Court reviewed the applicable factors here, and determined that there was no copying, but that Citrix' "eight-year long failure to investigate the ‘011 patent" supported enhancement despite the patent examiner's current rejection of the asserted claims at the PTO. He also found that the remaining three factors supported enhancement - it wasn't a "close case", the length of infringement was lengthy, and Citrix' size and financial condition all weighed in favor. Judge Gilstrap determined that trebling the $10 million verdict was not appropriate, and instead enhanced damages $5 million for a total of $15 million.
The opinion then went on to set forth the procedure for calculating prejudgment interest ( the prime rate averaged over the actual period of infringement).
Finally, the parties disagreed who was the prevailing party, since the jury agreed with Citrix that the '796 patent was not infringed, and with SSL that the '011 was and awarded the amount sought for that patent. Judge Gilstrap determined that neither side was the "prevailing party" in this case and held that each side should bear its own costs.
I am behind posting about this, but the Eastern District now has a mobile website, which provides a version of the district's website that is optimized for mobile browsing. While browsing it I noticed that the local rules are now available in Epub and Mobi formats , as well as pdf for us old-timers.
We hear a lot of talk these days about the U.S. Constitution and how important it is to protecting our liberties. But surveys continue to show a disturbing trend of many Americans not understanding the Constitution and its relevance to our lives today. After all, with all the technology we have now, why should we care about a document that was written 225 years ago on parchment and with a feather quill pen?
For starters, just imagine life without the Bill of Rights, the first 10 amendments to the U.S. Constitution. The Bill of Rights guarantees some of our most precious liberties, including freedom of religion, speech, and press, freedom from unreasonable search and seizure, and private property rights. The Constitution created the framework for a strong but limited national government and established the fundamental rights of all U.S. citizens.
Our Constitution is the foundation of the legal authority for our nation and federal government, and it also established the system of checks and balances with three branches of government: legislative, executive and judicial. This separation of powers was crucial to the framers of the Constitution – and still is today – to prevent an oppressive government similar to what the British enacted on colonial America.
Although written long ago, the Constitution is as relevant to our lives today as ever. For example, the Constitution is the governing document that lets us post messages on Facebook, Twitter, and watch videos on YouTube. It also allows us to have differing opinions, enjoy the freedom to express them on blogs or elsewhere and even demonstrate peacefully.
To emphasize the importance of Americans understanding the Constitution, Congress has designated Sept. 17 as Constitution Day to commemorate the signing of the document in 1787. The legislation requires educational institutions that receive federal funding to implement programs to teach students about the Constitution.
While it’s appropriate to learn about and celebrate the Constitution on this day, we also should take this time to renew our focus on civics education in our schools and society. Today’s young people soon will be voting, sitting on juries and running for political office, and they must have the civics knowledge to make informed decisions and be engaged citizens. Research has shown that individuals who receive a solid civics education are more likely to be involved in their communities through activities such as volunteering and voting.
In today’s economy, the need for math, reading, writing and science knowledge is obvious, but civics education is an essential part of a comprehensive education. It is also essential to develop informed, effective and responsible citizens. Our future depends on individuals who understand their history and government, have a sense of what it means to be an American, and know their rights and responsibilities as a citizen.
“The better educated our citizens are, the better equipped they will be to preserve the system of government we have,” said retired U.S. Supreme Court Justice Sandra Day O’Connor, a longtime civics education advocate. “And we have to start with the education of our nation’s young people. Knowledge about our government is not handed down through the gene pool. Every generation has to learn it, and we have some work to do.”
Justice O’Connor is right that we have some work to do.
We are seeing increasing evidence that civics education is not a priority in America, and state and federal funding of programs designed to teach students about our heritage has been cut. The National Assessment of Educational Progress found that less than one-third of U.S. fourth, eighth, and 12th grade students are proficient in civics.
Educating the public about the rule of law is part of the State Bar of Texas’ mission. For more than 26 years, the State Bar’s Law-Related Education program has been training educators on civics education programs and curriculum. As funding for civics education continues to decline, the Bar’s programs are more important than ever. Lesson plans focused on Constitution Day can be found on www.texaslre.org.
In the past year alone, LRE has trained more than 6,800 teachers and had an impact on more than 450,000 Texas students. Another recent addition to Law-Related Education’s resources is, “Oyez, Oyez, Oh Yay! Civics Resources for Texas Students and Teachers.” The web-based resource assists students and teachers in studying the landmark court cases that students need to know for the TEKS test. The site, texasbar.com/civics, includes videos, educational games, case summaries, lesson plans and numerous links to curriculum materials and other resources. And, this is just the beginning. The State Bar continues to enhance the program and “Oyez, Oyez, Oh Yay!” will continue to be a part of public school curriculum for the next 12 years.
On this Constitution Day, let’s all re-dedicate ourselves to learning more about our heritage and encourage our children to do the same. An engaged citizenry is essential to preserving our rights and freedom, and sustaining our system of government.
Klausner Technologies v. Oracle Corp., 6:11cv556 (9/10/12)
Judge: Leonard Davis
Holding: Motion to Dismiss GRANTED IN PART
Hard to believe, but there is yet another opinion on a motion to dismiss citing Twombly this week - this time from Judge Davis. To cut to the chase, Judge Davis held that both the plaintiff's direct and inducing infringement allegations were insufficient, but gave two weeks for the plaintiff to replead.
With respect to the allegations of direct infringement, Judge Davis held that they did not adhere to Form 18 because they did not identify any accused products, services, methods, or other infringing acts for the patent-in suit. "While Klausner alleges each Defendant provides a “Voice over Internet Protocol (VOIP) messaging service having some . . . visual voicemail capabilities,” Klausner failed to assert how these products were infringing, and the product identification is not specific to any particular Defendant," thus providing an example of when an identification of the accused activitiy isn't sufficiently like the "electric motors" identified in Form 18.
As to the indirect infringement, Judge Davis held that the allegations failed to state a claim that was plausible on its face. "In order to properly state a claim for indirect infringement, Klausner must include some factual support that would allow this Court “to draw [a] reasonable inference that [Oracle] is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). Here, while Klausner asserts Oracle “contributed to the infringement and induced others to infringe the ‘576 Patent,” it fails to provide any factual support for these allegations."
From Docket Navigator.
Judge: Rodney Gilstrap
Holding: Motion to Dismiss GRANTED IN PART
Two weeks ago, I posted on Judge Gilstrap's ruling in the Inmotion case denying a motion to dismiss the plaintiff's claim for direct or induced infringement, but granting the motion as to the contributory and willful infringement allegations.
Earlier this week, Judge Gilstrap ruled on a similar motion (what are the odds there would be two motions on this subject? Wow.) He once again denied the motion as to the direct infringement allegations, finding that the plaintiff had carried his burden under In re Bill of Lading to satisfy the requirements of Rule 18 (there's a pun in there somewhere - I just know it), but in this case found that the contributory infringement allegations were insufficient, but the inducing were okay. The Court held that “to state a claim [in the Fifth Circuit] for indirect infringement … a plaintiff need not identify a specific direct infringer if it pleads facts sufficient to allow an inference that at least one direct infringer exists” and that in this case the plaintiff generically identified direct infringers as the “end users" of the products, which Judge Gilstrap has previously held was sufficient to pass muster (or maybe to deem the "Bill of Lading" signed? I may need to work on that one a bit more.)
As with Inmotion, the Court gave the plaintiff two weeks to replead the allegations found to be insufficient. Interestingly (in a morbid sort of way) the opinion concluded with a statement that "the authority supplied in Defendant’s Supplemental Authority brief predates the Federal Circuit’s In re Bill of Lading decision and is therefore moot," and accordingly denied the motion to strike.
From Docket Navigator.
Phoenix Licensing v. Aetna, 2:11cv285 (9/13/12)
Judge: Rodney Gilstrap
Holding: Motion to Dismiss DENIED without prejudice
Defendant Liberty Mutual filed a motion to dismiss claiming that the patents-in-suit did not claim patent eligible subject matter and are thus invalid under 35 U.S.C. § 101. Judge Gilstrap denied the motion without prejudice, writing that "[t]he Federal Circuit [in In re Bilski] has held that claim construction is an important first step in any § 101 analysis. The Court agrees that claim construction briefing, along with supporting evidence, may be necessary to determine whether the patents-in-suit contain patent-eligible subject matter."
Accordingly, he denied the motion without prejudice to reurging after the claim construction briefing had been considered by the Court.
Personalized Media Communications, LLC v. Echostar, 2:08cv070 (9/4/12)
Judge: Roy Payne
Holding: Order from Show Cause Hearing on Failure to Meet and Confer
Just when you think you've seen everything - something like this comes along.
This order was the result of a show cause hearing Judge Payne held on August 24, 2012 to determine whether Defendants Rovi Guides, Inc. and TVG-PMC, Inc. (collectively, “Rovi”) should be sanctioned for their failure to meet and confer with the other parties in this case regarding the establishment of a docket control order as ordered on July 17, 2012.
Judge Payne concluded that while no sanction would be imposed, Rovi would instead be ordered under Rule 16(f)(2) to pay all attorney fees and expenses incurred by the other parties in connection with meeting and conferring and preparing their Joint Statement and also with the preparation for and attendance at the August 24, 2012 Show Cause hearing. Here's the factual background.
On July 10, 2012, the Court ordered plaintiff to join Rovi as a necessary party, and on July 17, 2012, the Court entered an Order providing that “[a]ll parties are ordered to meet and confer about a new Docket Control Order, and they shall include counsel for Gemstar, and submit a proposed order to the Court, noting any areas of disagreement." Plaintiff and defendants Echostar and DISH Network complied with the order to meet and confer, and included Rovi in that process. On August 7, they filed a Joint Statement setting out the results of their efforts, which included the following:
“However, when [Rovi] announced its intention to file a ‘Notice of Non-Consent to the Magistrate Judge,’ it declined to participate further in this filing regarding a new docket control order.”
Hmm. Presumably intrigued at this novel approach to compliance with court orders, the Court set a Show Cause hearing on August 24, 2012 (Dkt. No. 387) to determine whether Rovi did, in fact, decline to participate as ordered and, if so, why.
At the Show Cause hearing, Rovi admitted through its counsel that the above report was accurate, and that because of its refusal to participate, Rovi’s position on all scheduling issues is not shown anywhere in the record. The refusal to participate rendered the resulting Joint Statement an incomplete document and a waste of time for the parties and the Court. So why did it refuse to participate? "The primary justification offered by Rovi," Judge Payne noted, "was that it had decided not to consent to trial before a magistrate judge and was concerned that any participation in the scheduling process, even if ordered by the Court, would constitute a waiver of its decision not to consent.
No, I'm not making this up. They really did argue that.
At the hearing Rovi conceded that there was no statutory or case law directly supporting its fears in this regard, and the “best” case that it could cite to the Court was Altier v. Worley Catastrophe Response, LLC, 2012 WL 161824 (E.D. La. Jan. 18, 2012). Altier dealt with the authority of a magistrate judge in a consent case to rule on a motion to intervene by a party who did not consent. That court decided that the magistrate judge did have authority to determine the motion to intervene despite the lack of consent. But Judge Payne concluded that "nothing in the opinion even suggests that compliance with the pretrial orders of the magistrate judge could be construed as waiving a lack of consent to trial. Indeed, it has been the settled law in the Fifth Circuit for a generation that even fully participating in a jury trial before a magistrate judge does not waive the need for written consent by a party added after the case had originally been referred to the magistrate judge under §636(c). If participating in a jury trial before a magistrate judge, without registering any objection, does not waive the requirement of written consent, there can be no good faith argument that complying with an order to meet and confer about a schedule, while expressly noting the lack of consent, could constitute waiver." (Internal citations omitted).
Rovi also articulated a concern that this case had not been referred to the undersigned by a written order of the Court, but rather had simply been referred by the Clerk upon receipt of consent forms from the original parties, but Judge Payne noted that this concern was factually wrong - a written Order of Reference, signed by Judge Gilstrap, was filed into the record of this case on January 3, 2012 referring the case to him.
In conclusion, Judge Payne found that there was "absolutely no reason" for Rovi to refuse to comply with the order to meet and confer and report to the Court. Accordingly, he ordered the plaintiff Personalized Media Communications, LLC and defendants EchoStar Corp. and DISH Network Corp. to serve upon counsel for Rovi within 10 days a statement for the fees and expenses described above, which Rovi is ordered to pay within 10 days thereafter.