There is increasing interest in the use of standing desks for work in office environments these days. Whether it is to prevent back pain or to avoid the paunch that may come from a sedentary profession, working while standing, at least some of the time, seems to have benefits.
Partly for this reason, a couple of years ago I started using the architect's standup desk shown to the left for reviewing documents and working on the iPad. I had actually wired the wall above the desk for a wall monitor when we renovated the Hub, but putting a second or third monitor on the wall never ended up being a good solution. I either read the document on the iPad, or I pick up the Lenovo screen shown at the left and read it on that.
The problem has been that I do most of my work staring at computer monitors, and I have not wanted to put the monitors at a level that requires me to stand all the time. What I have really been wanting, is an adjustable desk that would allow me to stand as often as I like, but with two large monitors, plus the sidecar Lenovo, that didn't seem to be an option.
Then I saw the Varidesk advertised, which is an adjustable desk that raises manually from a standard seated position to a standing height ( it is actually adjustable) using springs to carry most of the weight. It didn't require any assembly, although it took a while for me to get all the cabling behind the desk adjusted to where raising and lowering it would not snag anything. I use a 30" and 24" dual monitor setup with the Lenovo on the side attached with an extra long cable so I can pick it up and use it at the old standup desk whenever I like, and the ScanSnap on the other side.
I have been really happy with the result so far - it lets me stand and pace while reading emails or dictating, and while I do still lower it and sit for an hour or two a day, it certainly seems to be better for my health not to be spending all that time sitting.
Macrosolve v. Newegg, 6:11cv287 (6/21/13)
Judge: John Love
Holding: Plaintiff's motion for order limiting invalidity theories DENIED
Judge Love declined to limit the 250 asserted prior art references at this stage, stating that a court imposed reduction would be best done with the benefit of claim construction, discovery, and expert reports setting forth the extent of the plaintiffs infringement case, as well as the relevance of prior art asserted.
In doing so, he noted that the court had implemented a procedure for limiting both asserted claims and invalidity theories for trial, and directed the parties to the Court's website and form docket control order. "Nonetheless," he concluded, "the parties are at all times encouraged to limit the number of asserted claims of prior art references in order to limit litigation costs and simplify the case. Should either party engage in the frivolous assertion of infringement contentions or prior art to drive up costs, the party is at risk for dismissal of its claims and/or monetary sanctions."
Recently I made some changes to how I use Evernote and RTM (Remember the Milk) - two programs that I posted on in December.
The biggest change is in Evernote's ability to set reminders. This did not get my attention until the program explained to me that setting a reminder on a note in Evernote would create an item in RTM that is linked to the Evernote note. This solved a major problem I was having in using the two programs at the same time.
Prior to this, while I could email tasks directly to RTM, the problem was that if the task was an email with attachments, the attachments did not become part of the RTM task. Accordingly, what I typically did was send the email containing the attachments to Evernote to create it as a note, and then either email another copy of the email to RTM to set up the task, or create the task manually. Either way, I would have to manually navigate to the Evernote entry to view the attachments, and there was always the possibility that I would forget that there were attachments to be reviewed when working with the RTM task.Now, I simply forward relevant emails to Evernote, which creates entries in my inbox notebook. I then periodically go through the inbox folder during the day setting reminders, which creates dated tasks in RTM, which have links to the Evernote entry. I actually do additional processing of the new tasks in RTM, because they are kept in an RTM inbox until I do that. Slight loss of efficiency, I know, but I'll clear that up later when I have time to study the programs more.
Notebooks versus Tags
There are many schools of thought as to how to organize notes in Evernote. Like many users, I initially created over a dozen separate notebooks to sort notes into, and then subject matter tags as well. Several months ago, I read comments to the effect that it is better to have very few notebooks, and sort everything using tags, which are more versatile since each note can have an unlimited number of tags. In fact, the only difference I have been able to identify that would cause me to want to segregate notes into a notebook is that I can share a notebook online, but not notes with a given tag. Under this school of thought, there is basically one notebook for "general notes" and all organizing is done using tags.
I finally decided that I agreed with this, and over the weekend I cut from about 15 notebooks to only four - inbox, general notes, casenotes, and legal research. The default folder is general notes - everything goes here with three exceptions.
First, I keep a separate inbox for new notes so that they do not get lost before I get them properly coded. As noted above, I go to the inbox periodically during the day and classify and process the new notes, assigning tags and, where needed, reminders.
I also keep separate notebooks for case notes and legal research, in part so that these could potentially be shared within the law firm, while not sharing non-– case related materials, such as, for example, my notes on favorite Star Trek episodes and which H. P. Lovecraft stories are the scariest. Not that I have posts on the subjects of course, but someone might.
Once again, I highly recommend both programs. I am still not happy about the cow logo, but the thing does nothing but work well, so at this point, I don't care what it looks like.
I have not posted on the various presentations today, but former Judge Diane DeVasto of Tyler moderated a panel this afternoon that I thought readers might be interested in, with Judge Rodney Gilstrap of Marshall, Magistrate Judge John Love of Tyler, and J.C. Penney Corporation Senior Managing Counsel Diane Lettelleir on the topic of "Trial of a Small Patent Case" which Diane D. explained they expanded into "management" as well.
The problem, she explained, is that no one thinks they have a small patent case. Judge Gilstrap said he didn't have a definition of a small case, but you could look at the damages, or the evidence - but that if this becomes popular, a definition will have to be hammered out. At present we don't have one - other than the old Potter Stewart "I know it when I see it." Judge Love said that it would be best to decide that a case is in this category at the outset, but noted issues with doing that. Diane D. later noted that the ABA entity looking into this issue was looking at $2.5-$3 million.
Can small patent claims courts work in the U.S. as they do in the U.K.? Diane L. summarized how they do it and said that they don't have a definition, but they do have a damages cap of 500,000 pounds (actually a waiver of damages over that). (Sounds to me like Texas' new procedure for expedited jury trials). The existence of injunctive relief doesn't affect eligibility. The procedure has been there 20 years, and has worked well. Parties can decide to be in it even if damages exceed, or can move into another higher-damages court. Diane D. asked about right to jury trial - well, they don't have that in the U.K. Could still have a small case track in U.S. that has a jury trial, of course. Also, no appeals in the U.K. absent permission. She said that appealing to the district court would eliminate any cost savings.
Judge Gilstrap observed that every case is unique, and it is difficult to categorize cases as large or small, and what he sees is the level of complexity as a more common variable. Judge Gilstrap went through the procedure for submitting case orders in his case and said that parties can certainly limit things by agreement, but it is difficult for the judiciary to lead the charge doing this. But the case can be tailored to fit the case if the parties agree, and he noted that the in person status conferences continue to be held because they promote face to face discussions among counsel. But he recommended doing this from the bar to the court instead of the court to the bar. The courts do not have legislative authority to do some things that the parties can agree to do.
Judge Love went through his procedures as well, and how parties can create procedures appropriate to smaller cases. Perhaps later on there might be a track created for these types of cases. But he doesn't see parties coming to the court asking for this sort of track at present.
Diane L. discussed other aspects of the U.K. procedure, which allows patent agents to actually litigate claims in some cases. There is also a true small claims court system (10k pounds) but patent cases are excluded from that. U.K. does have loser pays, but there's a cap in some cases on what those costs can be, and there are a number of other costs and benefits that are not present in our system.
Diane D. went over the USPTO program to look into patent small claims courts, and summarized some of the 25 comments on it. She read a specific comment to the effect that the existing court system can work - that we do not need a new system of courts. She emphasized that the topic isn't likely to go away, it appears, and may eventually result in another pilot program. Both judges said they would have to see what the specific pilot program would be and that the judges as a whole would make a decision as to whether participation would be in the best interests of the district.
The issue of consenting to magistrates as a potential way to have a smaller case track was discussed and Diane L. discussed a potential package of limits that present true cost savings to the clients that includes consent to a magistrate. Perhaps that would result in more use of the magistrates. She emphasized the need for the bar to take steps on these topics within our existing rules before other proposals are forced upon us. She noted that inventors need access to enforce their patents, and businesses need alterante tracks.
Diane D. asked if the determination could be made after Markman, and Diane L. emhasized that it is hard to make changes later because discovery has been done and trial teams have been set up. Judge Gilstrap agreed, but noted a problem is that it is hard to evaluate your case until you have the Markman ruling - that is why he requires mediation after the Markman. On the subject of consents, Judge Gilstrap emphasized that in this district, you know which magistrate you'll get, but that's not the case in many other districts. He also noted some procedures for getting limited Markmans up front to help focus the case early.
Diane L. noted that expert costs are limited in the UK procedure by an up front limit of 3 claims and 3 prior art references. They allow multiple parties, but that might get a transfer to the higher court. Judge Love discussed the issues of limiting claims and prior art references and when it coule be done as part of a package deal to limit costs.
Diane D. noted the pleading standards - issues regarding which have been discussed by at least three presenters/panels today - and Diane L. noted how restritive UK courts are on this. Under their practice, you cannot use categories of information obtained after the status conference without permission. Also, no depositions. So the plaintiff really has to know their case before they file it.
A tall audience member asked Judge Love if the court would be willing to provide faster Markman and trial dates for smaller cases? Judge Love responded that the parties would need to propose something - he would do his best to accommodate, but he could not guarantee anything.
Diane D. asked if the basic fairness of the system is affected by an expedited procedure like this? Diane L. noted the risk of anything new, and the importance that the risk appear to be shared. The judges reiterated that presenting things by agreement helps a lot.
Breaking in my new ABOTA 7th Amendment lapel pin today in Albuquerque presenting a paper with Eastern District Chief Clerk Dave Maland, Practice in the Eastern District of Texas After the AIA: Unintended Consequences and Case Management Challenges at TexasBarCLE's Advanced Patent Litigation seminar.
We just got moved up to 11:15 to cover for another speaker, so Dave is headed up to put on a coat and tie now.
Macrosolve v. Antenna Software, 6:11cv287 (7/23/13)
Judge: John Love
Holding: Motion for Leave to Supplement Invalidity Contentions DENIED
It's been a bad couple of days for Newegg - yesterday it lost a motion to compel and was assessed fees and costs. Today it and another defendant lost a motion for leave to amend to add seven additional prior art references.
In this case, the defendants appear to have asserted over 250 prior art references, and sought leave to add seven more that they contended were discovered as part of preparations for a request for reexamination.
Judge Love found that the defendants were not diligent in their investigation, discovery, and presentation of prior art references, and did not have an adequate explanation for failing to present the references at an earlier date (noting an almost seven month gap with respect to defendant GEICO). He also found that the references were not shown to be important, or not cumulative of the 250 references already asserted, or that the amendments would not result in prejudice to the plaintiff.
I have been spending the morning getting ready for the forthcoming patent status conferences in Marshall, which have been set on August 8. Lots of cases and lots of very interesting things to analyze and calculate in order to advise clients what's happening and likely to happen.
(Not as exciting as orders on JMOLs - don't get me wrong - but the trends are interesting to study. And I enjoy estimating Markman and trial dates for my cases taking into account the different factors and then seeing how close I come. Hey, I'm easily amused). Because the Marshall conferences are spaced a little further apart than their counterparts in Tyler, the trends are a little clearer after each - you can see which way the docket is moving as far as time to Markman and trial, as well as how the judges are handling some of the recurring issues. And sometimes the courtroom doors get closed for fire code purposes during the hearings and that's all kind of fun - long story.
Coincidentally, the work is actually very closely related to the paper that Eastern District Chief Clerk Dave Maland and I are presenting in Albuquerque day after tomorrow, Practice in the Eastern District of Texas After the AIA: Unintended Consequences and Case Management Challenges at TexasBarCLE's Advanced Patent Litigation seminar I do not expect Dave to break into song during our presentation as he did at Peggy Anderson's retirement party, but it probably depends on how late we stay up tomorrow night preparing. You can never predict just what you'll see in one of Dave's slide shows, I have come to learn.
(But wouldn't it be cool if we could present patent filing statistics with a backing blues band, a la Adventures in Babysitting? Have to talk to the bench/bar planning committee about that. I did do a paper on the ED local rules one time as a children's story - this would not be as weird. Although come to think of it, I never got asked back to that seminar. Hmm...)
Where was I? Oh, yes, the upcoming status conferences and their relationship to our paper.
The relationship is because the periodic status conferences reflect the greatly changed complexion of patent litigation after the AIA - they are where the effect of Section 299 is felt at the trial court level when the court has to decide how to organize the cases for preparation and trial. The numbers of cases filed, numbers of cases which are serially filed (meaning they involve the same patent claims but against multiple defendants because the produce or process isn't the same) mean that calculating out how many Markman and trial settings the August 8 docket is likely to generate and when the settings are likely to fall is an interesting intellectual exercise.
It isn't as simple as it used to be, i.e. "well, there are 24 cases, so that means 24 Markmans and trial settings, running from dates A to B and C to D. It's not linear any more - literally. When I make notes on the cases to be heard I literally have to work in multiple dimensions charting it all out because the cases' relationship to each other is as important as when they're set and who they involve. The settings helpfully group most of the related cases in the same time block, but that's not always the case. And clients' position within this matrix is important for figuring out when things are going to happen (and what things those might be).
Our paper is actually on statistics, analyzing filings and resolutions in the Eastern District both over the past several years comparing divisional numbers and comparing the numbers to other prominent patent districts. But in preparing the analysis you have to identify and explain why filings and outcomes do certain things and why there are certain trends in filings and outcomes, some of which aren't inherently logical. I can see that the number of cases set for August is confirming what we're seeing in the filing trends.
And as always, it's good to see everyone at the status conferences. While most experienced out of district lawyers avoid the costs of attending by sending local counsel, some do show up anyway, and it's always fun to see new lawyers finding out what happens (and doesn't happen) at a status conference in Marshall.
TQP v. 1-800-Flowers.com, 2:11cv284 (7/22/13)
Judge: Roy Payne
Holding: Motion to Compel Discovery DENIED
Defendants HSN and Newegg filed this motion raising two issues. HSN then settled and Newegg withdrew one issue, so the motion proceeding to hearing on the sole issue of Newegg’s request to compel an answer to an interrogatory asking TQP to “[e]xplain in detail, and identify all documents and things relating to, IP Navigation Group, LLC’s involvement in [these cases], including, but not limited to, all communications between IP Navigation Group, LLC and TQP Development, LLC relating to the pre-filing investigation, filing, and prosecution of the case”.
Judge Payne denied the motion, noting that the adequacy of the pre-filing investigation conducted by TQP was not at issue, there being no Rule 11 motion pending. “As noted in the Patent Case Management Judicial Guide produced by the Federal Judicial Center (2009 ed.), at Section 4.6.1 (“Discovery Regarding Patentee’s Pre-Filing Investigation”)” he observed, “outside of the Rule 11 context, ... the best practice is to deny such discovery.”
The Court also rejected the case relied upon by Newegg, View Eng’g, Inc. v. Robotic Vision Sys., Inc., 208 F.3d 981, 986 (Fed. Cir. 2000). That opinion notes that “the patent holder, if challenged, must be prepared to demonstrate to both the court and the alleged infringer exactly why it believed before filing the claim that it had a reasonable chance of proving infringement.” (emphasis supplied by Judge Payne). Such a “challenge” would occur if a Rule 11 motion is filed and heard, he noted, or if a claim is made under §285, “or the like.”
In the absence of any such request, the Court held that there must be some other basis to support the discovery, which has not been offered. He held that there was no basis to apply the attorney-client privilege, but that the work product doctrine was a valid objection to a pre-suit investigation performed by agents of a party in anticipation of litigation, and Newegg had not even attempted to show the substantial need and undue hardship necessary to overcome this protection.
The Court also noted that the interrogatory was clearly overbroad, as it seeks not just the pre-filing investigation, but all documents “relating to IP Navigation Group, LLC’s involvement” in this case. For all of these reasons the motion was denied.
As is customary in Judge Payne’s court, in accordance with Rule 37(a)(5)(B), Newegg, Inc. was ordered to pay to TQP 50% of the reasonable expenses incurred in opposing the motion, including attorney’s fees. (The reduction by half was due to the withdrawal of one-half of the issues in the motion before the hearing). The parties were directed to meet and confer on the expenses and, if the matter is not resolved beforehand, Plaintiff was directed to file a motion to fix expenses within 21 days.
VirnetX v. Cisco, 6:10cv417 (6/4/13)
Judge: Leonard Davis
Holding: Motion to Alter or Amend the Judgment DENIED
Chief Judge Leonard Davis conducted a jury trial in this case beginning last Halloween. Following a five day trial, the Tyler jury returned a verdict that the four asserted patents were not invalid and defendant Apple infringed all four patents. After addressing the parties' post-trial motions, Judge Davis entered judgment.
Apple then asked the Court to amend or alter the final judgment. Specifically, Apple requested that the Court vacate the portion of the judgment severing VirnetX’s request for an ongoing royalty into a new case, reclassify the judgment as non-final, and amend the judgment after the disposition of VirnetX’s ongoing royalty request. Apple argues it was improper for the Court to sever the claim for an ongoing royalty, because an ongoing royalty is not a separate cause of action but rather merely a remedy. Since the severance was improper, Apple contended the ongoing royalty issue was still pending in the original case, therefore the judgment was not final.
After reviewing the applicable law on severance, Judge Davis disagreed, noting that when a party requests an ongoing royalty, he believes that “severing the action for ongoing infringement is the most efficient way to handle the ongoing dispute.” A severance brings finality to the original case, and “allows the original judgment to become final and proceed on its appellate course. Since determination of postjudgment issues of ongoing infringement and royalty may be time consuming and a moving target, awaiting determination of these issues would substantially delay appeal and final resolution of the case.”
In something of an understatement, Judge Davis notes in a footnote that a request for an ongoing royalty goes beyond simply performing a mathematical calculation to determine future damages, and explains why in three sentences.