I wanted to take a few minutes to put the recent verdicts and orders in the Alexsam litigation in the Eastern District of Texas in context since they may well represent the future of how patent litigation will be tried, and thus might be of interest to readers.
In 2011, Alexsam tried two patent cases to trial in the Eastern District. In the first, against IDT, it won an infringement finding, plus some infringement found by Judge Everingham as a discovery sanction. Later that year it lost an infringement trial against Pier 1 before Judge Schneider. In both cases, the juries declined to find the asserted claims from the two patents invalid. (Ed. note: I represented Pier 1 in that case and am representing six of the seven defendants in the 2013 cases).
Both verdicts were appealed, and last month, as I posted recently, the Federal Circuit affirmed the IDT jury's finding that the patents had not been shown to be invalid, as well as the infringement finding that was a discovery sanction, but reversed the infringement finding by the jury. One and possibly both of the parties may seek rehearing, so stay tuned. The Pier 1 appeal is still pending.
Before the Federal Circuit issued its opinion, however, Judge Schneider had been bringing Alexsam's claims against seven defendants to trial-ready status, with a big assist from Judge Craven in Texarkana, who has been conducting hearings and making rulings in seven separate cases. For although the case was initially filed as one proceeding, it was severed into seven for reasons that readers might be able to guess, and in that setting has been slouching toward trial(s). Well, sort of - the invalidity and inequitable conduct claims were consolidated for a single trial, which was then split into a jury and a bench trial, and the rest of the cases were then consolidated into the invalidity case for filing purposes for the infringement trials. I am not making any of this up - it gets that complicated trying to handle the common issues in a common fashion while keeping the individual issues separate.
Anyway, getting back to boots on the ground, Judge Schneider set up shop in the historic Harrison County Courthouse last month to try the invalidity claims brought by all seven defendants, which as I also reported, resulted in a verdict for Alexsam, finding that the asserted claims had not been shown to be invalid by either of the asserted references.
A week later (maybe two - I have lost track of time), the trial teams reassembled in Tyler for a one day bench trial on the defendants' inequitable conduct claims. Judge Schneider announced at the conclusion of the hearing that he was not finding inequitable conduct, and followed that up with a written ruling week before last, as I noted earlier this evening.
A couple of weeks after that hearing (this is last week now), the first of the six separate infringement trials took place in Marshall against the first defendant in line, Barnes & Noble. As I posted earlier this evening, that resulted in a defense verdict of no infringement.
A bench trial on laches was set for this coming Tuesday in Tyler, but the parties asked the court to delay that (why does no one but me find that humorous?) and in fact to just consider the issue on written submissions, so the Court entered an order to that effect Friday.
This Groundhog Day of patent trials (and it may only be the prototype of such a beast) resumes June 24 in the same courtroom, with the same judge and the same lawyers, this time against defendant The Gap. That will be Alexsam's fourth trial in the Eastern District, this defense team's third - and we have four more to go after this one.
Okay, now do you get the reference? We are not yet to the point of kidnapping the groundhog and driving off the cliff. But of course I can't speak for Judge Schneider.