Babbage Holdings, LLC v. Activision Blizzard, Inc, et al, Cause No. 2:13-cv-750 (05/15/2014)
Judge: Rodney Gilstrap
Holding: Defendants' Motion to Dismiss granted
Judge Gilstrap granted the Defendants' Motion to Dismiss the Plaintiff's Second Amended Complaints, agreeing that the Plaintiff had not pleaded facts that plausibly establish Defendants knowledge of the patent prior to its expiration date.
After denying the motion, Judge Gilstrap noted counsel's obligations under Rule 11 and wrote that "the circumstances surrounding this motion raise, in the Court's view, a real and legitimate concern that Babbage may have violated such duties, especially in light of its Second Amended Complaint which was filed after Defendants had urged the dismissal of Babbage's indirect infringement allegations but which continued to assert the same claim of indirect infringement as included in its earlier complaints."
Accordingly, Judge Gilstrap set a hearing for the plaintiff to show cause why sanctions should not be imposed in light of the above conduct.
Texas Lawyer did another of their periodic patent judge panels moderated by John Council at the Belo Mansion in Dallas this morning. Representing the Eastern District of Texas was former Chief Judge Richard Schell and Magistrate Judge Nicole Mitchell. They were joined by U.S. District Judges David Godbey of the Northern District of Texas, Dallas Division and Lee Yeakel from the Western District of Texas, Austin Division.
A very Highmark Octane discussion if you, uh, know what I mean.
Assuming that I am out of my hearing in Marshall in time to make it to Houston Friday, I will be pleased to be co-presenting a paper Trial Procedure in Federal Court with Eastern District of Texas Magistrate Judge Nicole Mitchell of Tyler Friday afternoon in Houston. Judge Mitchell will also be part of the lunch judges panel. Depending on when (and whether) I show up, it will be the last or the second to last segment of the 2014 Federal Court Practice seminar put on by the State Bar of Texas in Houston.
Judge Mitchell (possibly with me - possibly not) will be covering the pretrial, jury selection, trial, and postverdict stages of the federal civil litigation process, although we are deferring most of the discussion on the crucial JMOL stage of the process to the paper because we're short on time to cover that in the detail it needs. Although Judge Mitchell might have plenty of time if I don't make it.
If you're in Houston, or short on CLE, or just want to hear how the Eastern District's newest patent judge suggests you should do things at trial, sign up and come spend Friday with us (well, with her anyway) in Houston. You'll be glad you did.
More attention to the Eastern District of Texas docket today. In an article Eastern Texas Judge Has Nation's Busiest Patent Docket, Law360 reporter Ryan Davis analyzed Judge Gilstrap's docket in light of the 2013 patent litigation year in review report by litigation analytics firm Lex Machina. According to that report, there were 1495 patent cases filed in the district last year, with 941 of them being assigned to judge Gilstrap – 542 more new patent cases than the next busiest judge on the list.
As I noted to Ryan in the article, one of the factors that explains Judge Gilstrap's docket is the fact that due to vacancies in the district, at present he is the only district judge assigned to the Marshall division, which means he receives every new case filed in the division. One caveat, though - my note that Judge Gilstrap has four law clerks is incorrect. A thorough search of the courthouse only located three. I just know I saw a fourth one somewhere ...
I skimmed the Lex Machina report yesterday after talking with reporter, and ran across a few items of interest to Eastern District practitioners.
Fastest median time to trial – although the district ranked fourth at 677 days, the three districts ranked ahead of it had only one or two trials each, ranging from 212 to 587 days – the Eastern District had 24 trials (jury and bench) during the same time, averaging 677 days.
Most new cases – as noted above, Judge Gilstrap ranked first, ED Chief Judge Leonard Davis fifth, and Judge Schneider seventh. The intervening four judges were all from Delaware.
Most merits decisions - Judges Andrews and Robinson from Delaware and Judge Gilstrap tied at 15. Judge Davis was next with 13.
Most summary judgment decisions – four judges tied for first place with five decisions each – Judge Leonard Davis came in tied for second with four.
Damages awards – unless I've forgotten one, the only Eastern District verdict in the top 10 nationally was Pact XPP v. Xilinx coming in at ninth at $23 million. This was below the 2013 average of $34 million, although the median award was $1.2 million.
Not for a case. I'm in a hotel downtown for a seminar tomorrow and am soliciting advice on restaurants. I know the usual suspects (I am upstairs from a really good one actually), but wanted to ask advice from the local bar. What's good?
Bianco v. Globus, 2:12cv147 (5/12/14)
Judge: William Bryson
Holding: Motion for Reconsideration of Order Denying Motion for Attorneys Fee Under 35 USC 285 Denied
Judge Bryson denied the original motion for fees on the issue of inventorship (the claim that the plaintiff lost on at trial). After Octane came out, defendant moved for reconsideration. Judge Bryson denied the motion, holding that (1) Globus had waived application of the new standard by not asking for it after the Supreme Court granted cert on the issue that grant meant that the change in the law couldn't be characterized as "unexpected"; and (2) the claim failed under the new, more liberal standard as well.
"Based on the foregoing analysis" he concluded "Globus has failed to satisfy its burden of showing that Dr. Bianco’s inventorship claim is one that “stands out from others with respect to the substantive strength” of Dr. Bianco’s litigating position. Thus, the Court concludes that Dr. Bianco’s inventorship claim was not exceptional within the meaning of section 285, as construed by the Supreme Court in Octane Fitness, and that Globus is not entitled to an award of attorney fees under section 285. The motion for reconsideration is therefore denied."
Well, there's one more item to scratch off on my bucket list - my oldest son's football career was chronicled on the front page of today's New York Times. No, seriously. See Football Risks Sink In, Even in the Heart of Texas. Okay, it's eleven words in the ninth paragraph and the article arguably is focused on something else, but still ...
With football off his radar (Cowboys games aside, of course - G shown in 2007 at old Texas Stadium at his first game) , Grayson is actually focusing on science and math, headed towards a career in engineering (we think). Interestingly, he's already logged more time in Judge Gilstrap's courtroom watching patent trials than about 90% of the lawyers working on them, so he'll have an interesting perspective when he finally gets to practicing.
No interest in law - he wants to be an inventor. Is very irritated over this whole graphene thing - he came up with that idea several years ago (although there was this tiny issue about enablement).
As numerous sources have reported, due to reports that pending patent legislation in Congress would be made effective retroactive to April 24, there was a flood of filing of new patent infringement cases on April 23.
I study filing patterns in the district in order to counsel clients on trends within the local patent docket, and thought it might be interesting to see what that day's filings looked like in isolation.
There were a few single defendant cases - Penovia LLC, Hyperion Therapeutics, Inc. and TQP Development, LLC filed one each in Marshall.
Quxuz LLC, InMotion Imagery Technologies, LLC and NovelPoint Tracking LLC filed three each, the first two in Marshall and the latter in Tyler.
Olivistar, LLC, CYVA Research Holdings, LLC, and c4cast.com, Inc. filed five each, also in Marshall.
But there were three much larger cases filed, one in Tyler, and two in Marshall. TQP Development, LLC filed 18 new cases in Marshall dealing with encrypted data transmission systems, while eDekka LLC sued approximately 90 defendants over patents dealing with information retrieval. Meanwhile, over in Tyler, VStream Technologies, LLC filed 19 actions asserting patents dealing with processing data from digital cameras.
Other divisions saw some new cases as well. PanTaurus, LLC filed one case in Beaumont before Judge Clark asserting a patent dealing with methods of inhibiting data corruption on a storage device, while Judge Amos Mazzant in Sherman received five cases filed by Net Navigation Systems, LLC.
Some of these cases represented adding cases with new defendants where the patents had already been asserted, while others represented entirely new claims. And some have had more defendants added since April 23.