Working from the Tyler office today meeting and conferring and reviewing, but I wanted to note that while we're on the subject of patent demand letters this week, Senator John Cornyn of Texas with several of his colleagues has introduced the PATENT Act, which addresses a number of area pertaining to patent litigation, including demand letters. The bill text can be found here. According to the bill summary, the legislatioon does the following:
Patently-O has an analysis of the legislation here.
The reason that I point the legislation out in the context of demand letters is that the legislation's section addressed to demand letters is not dissimilar in scope or intent from the provisions contained in Texas Sen. Nichols' bill which was approved last week by the Texas Senate, and which defined "bad faith" to include objective statements as the prohibited deceptive trade practices, as opposed to a more subjective test contained in other legislation.
On behalf of my course codirectors Justice Jane Bland of Houston and Lamont Jefferson of San Antonio (who are not responsible for any attempts at humor infra), I would like to invite you to attend the State Bar’s 38th Annual Advanced Civil Trial Course this summer and fall. The program features timely presentations by the state's best speakers and presenters, on issues ranging from jury persuasion to new and proposed federal and state rules of civil procedure.
The course faculty includes local judges and experts at each course site, who will present topics that are especially relevant to local practitioners. Some of the highlights of the course include:
(Apparently my Federal Update didn't make the highlights. What's the point of being a course co-director when they won't plug my topic? Geez!) Anyway, with three live sites, you have plenty of opportunities to attend.
If you are looking for a relaxing venue for your CLE, come to our San Antonio course July 15-17 at the beautiful and family-friendly Hyatt Hill Country Resort and Spa. Your family will love the activities and water features of the resort as well as its close proximity to Sea World. Call the Hyatt at 210-647-1234 and ask for the State Bar of Texas room block rate of $210 single/double, and tell them how thrilled you are about the Federal Update topic. In all seriousness, this is our most popular site since it is great for kids, so make your reservations soon. My boys' favorite is the "lazy river" (which is a term of art in Texas) and the night time S'Mores at the camp fire. Register for the San Antonio site.
For those in the Dallas area, which is the session I am handling, you might prefer attending the August 19-21 venue at the Westin Galleria Dallas. The Galleria offers enough premier shopping to choke the proverbial horse in the heart of the North Dallas business corridor. The Westin Hotel provides a contemporary, stylish atmosphere and comfortable accommodations with state-of-the-art workout facilities. Spend your days learning and your evenings enjoying the variety of activities the area has to offer. (Seriously - my family and I are in the area a lot - call me for restaurants and activities for your particular herd - we have some favorites). Call the Westin directly at (972) 934-9494 and ask for the State Bar of Texas room block of $175 single/double. Register now for the Dallas site.
If you yearn for the heat and humidity of a Texas summer in the fall, and like having two hotels with the same name in the same mall, we offer the last of our three in late October: the October 28-30 venue at the Houston Westin Oaks in the Galleria Mall. The hotel offers comfortable rooms, workout facilities, swimming pool, and several dining options. Enjoy the top-notch CLE in the beautiful ballroom and spend your evenings shopping and dining with friends. To make your reservation at the Houston Westin Oaks, call 713- 960-8100 and ask for the State Bar rate of $170 single/double. Register for the Houston site.
All three live courses come with early-bird discounts, as well as a discount for all 7,000 of my buddies in the State Bar Litigation Section (you can thank me later).
If you have any questions or would like to register by phone, please call 800-204-2222, ext. 1574.
On the other hand, if you're like my boys (pictured at left when back they were cute) you prefer watching people on video as opposed to live (not to mention as opposed to having a life). Well, we've got that covered too. Register for the Video Replay in Austin on November 18-20, 2015 at the Thompson Conference Center. Register by November 4th and save $50 - again Litigation Section members can save $75.
And yet - there's more. Register for these programs and you can access the streaming videos of the speeches for up to a year and the digital course materials for several years. You'll find them at TexasBarCLE.com within 6-8 weeks after the live program, under My Online Benefits. (You'll need to log in as a registered user of the site to access this feature.)
Please come and join us for this outstanding program.
Just read that a trademark examiner denied Katy Perry's request to trademark "Left Shark" from this year's Super Bowl halftime.
Whether you consider this a major failure of our nation's intellectual property system or of our collective ability to ascertain what's important is up to you. But I did think the examiner went a bit overboard citing "Free Willy" as precedent.
One of the interesting things about a docket that includes repeated assertions of the same patent claims where the case law continues to evolve is that you can sometimes see the same judges applying changed legal standards to the same claim language and see the real – world effects of changes in standards.
I was reminded of that this morning when reading a recent order with the court's claim construction rulings and rulings on the defendant's indefiniteness arguments. In that case, the parties agreed on three terms, submitted 10 terms to the court is disputed, and the defendant asserted that five more terms were impermissibly indefinite under the new Nautilus standard.
The court concluded that three of the five were not indefinite, and a fourth would be given its ordinary meaning, but that the fifth was impermissibly indefinite. Interestingly, the same judge had ruled the same term not to be indefinite under the prior standard just a few years ago, but concluded that under the new standard it now was. The net effect was that three claims from two of the 11 patents in suit were invalidated as indefinite.
If you haven't voted already in the State Bar president – elect race, or for your local bar director or TYLA director, if there is a race in your district this year, remember to do so before the end of the Month. Both candidates are well-qualified and would do a good job, but don't let that stop you from voting - figure out which you think would do a better one, and vote.
In addition to information on the ongoing election, this month's bar journal has an article I wanted to call to readers' attention. Technology: Start Up - Going solo without breaking the bank by Nerino J. Petro Jr. and Bryan M. Sims is a helpful summary of office technology for new solos with suggestions at different levels of spend. I speak on the subject of technology for the small law firm fairly frequently, and am glad to see the TBJ provide some input on this subject as well.
I was privileged to participate in the 12th annual Dr. Kenneth Street Law Symposium at Austin College in Sherman last Friday, which was themed as "Emerging Trends in the Federal Courts." The symposium began with a luncheon address by Fifth Circuit Judge Patrick Higginbotham, which was then followed by three panels on trends in (1) appellate courts; (2) criminal cases; and (3) intellectual property and commerical innovation.
Accompanying Judge Mitchell on the third panel was moderator Robert Greeson, myself (hmm, three Baylor lawyers - this could get interesting) and technology entrepreneur Mike "Norden" Pisterzi, so called because he was the designated bomb-thrower for the panel, a role he excelled at, using his experience in intellectual property investment to shed light as well as heat throughout the discussion.
It is a bold statement to claim that a 75 minute panel is entertaining to anyone but the people on it, but we sure tested that, with a thoroughly enjoyable (at least for me) discussion on patent litigation in general, the effect of recent Supreme Court cases on practice, commercial innovation and investment, and when advisory opinions are and are not forthcoming. The discussion was forthright, candid, impassioned, and even tearful at times (and that was just Mike). I had a great time, and hope that the attendees did as well.
Thanks to Austin College for inviting us - it's always good to get to talk to students and practitioners about the interesting fields we practice in.
I realized last Friday that one indication you have been away from home too long is when you can't remember the security code for your own house. I did eventually figure it out, but it reminded me that I need to go back and start catching up on weblog posts. Being home two days out of 11 will do that to you.
The first one I wanted to make, before it gets away fro it's what m me, was that I presented a paper on technology in a trial practice at the State Bar of Texas litigation update seminar in San Antonio last Thursday. It was an interesting topic, in which I covered some of the changes to law offices in recent years, developments in technology, and the latest pointers on the paper–less office, as well as insights into personal productivity as it applies to the practice of law. For the first time, I was able to present to a group of lawyers some recent research on the benefits of reviewing documents on paper as opposed to electronically, as well as the benefits of taking notes on paper. The topics are always fun to present on, but especially when you can present some counterintuitive results.
I really enjoyed watching faces in the audience brighten up when I started giving them information regarding studies that indicated that they were already doing things the right way for them. Audiences seem to expect that they are going to get a lecture that continuing to use paper in any form verges on either the unethical or the immoral, and it is nice to be able to tell them some of the good uses the paper can be put to. (This advertisement for paper paid for by the East Texas Association For Cutting Down Lots of Pine Trees for Pulpwood).
My tweet on the Law360 feature on Eastern District of Texas Chief Judge Leonard Davis was narrowly beat out out by the tweet on the goodie bag distributed at the ED bench/bar. (Sorry, Judge). But the top (by far) was the photo of my wife and I cheering on our Baylor Bears with fellow Baylor alum DCC Ashley P at a recent event.
Unfortunately this panel fell so soon after last week's bench bar that I was not able to get a post up on it ahead of time, but I was fortunate to be able to pinch-hit moderating a distinguished panel yesterday morning in Houston on the subject of federal courts and the Federal Rules of Civil Procedure at the State Bar's 2014 Advanced Civil Trial course.
The panelists included U.S. District Judge Lee Rosenthal of the Southern District of Texas – Houston Division, Associate Dean Lonny Hoffman of the University of Houston Law Center and distinguished practitioners Richard W. Mithoff, Jr. and Murray J. Fogler, both of Houston.
We spent most of our time talking about the upcoming amendments to the Federal Rules of Procedure (even though they will not take effect until December 1, 2015) which deal with discovery and document preservation, but also covered other topics including pleadings, and technology for hearings. I hope to get a summary of the current state of the proposals up soon, but in the meantime, here's a quick summary of the salient points:
Lonny Hoffman provided an outstanding summary of the rule proposals for attendees, which was followed by valuable insights from Judge Rosenthal, who, as a former chair of both the advisory committee on the FRCPs and the standing committee which oversees all of the federal rules, is a veteran of the rulemaking process. Richard, Murray and I sounded the requisite notes of alarm for the practicing bar for any rule changes, since of course everything was better back in the old days (am I getting old, or what?).
Judge Rosenthal also informed us on the new Fifth Circuit pattern jury instructions which are hot off the presses, metaphorically speaking, as well as the new employment law pattern discovery requests which are available for use nationwide. (I don't have a link for the latter, so if any employment lawyers reading this know where they are located, please shoot me an email and I will post it).
It was a very enjoyable panel, and I really appreciated the opportunity to work with these distinguished members of the bench and bar. Nonetheless, after three trips to Dallas and one trip to Houston in the last eight days (some of which were distinctly happier than others), I am very glad to be back in the office and relatively undisturbed for a few days to catch up.