Eastern District of Texas Federal Court Practice

Unpatentable Subject Matter: Motion to Dismiss Granted Under 35 USC 101

Uniloc v. Rackspace, 6:12cv375 (March 27, 2013)

Judge: Leonard Davis

Holding: Motion to Dismiss for Failure to Allege Infringement of a Patentable Claim Under 101 GRANTED

The patent in suit deals with a method for processing floating-point numbers, and Plaintiff Uniloc asserted one claim from the patent in its case against Defendant Rackspace.  Rackspace, for its part, alleged that the invention was not patentable subject matter, and sought dismissal on that basis.

“When the allegation in a complaint, however true, could not raise an entitlement to relief," Judge Davis wrote, quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007) and Wright & Miller, "this basic deficiency should . . . be exposed at the point of minimum expenditure of time and money by the parties and the court.” The Court further noted that Section 101 questions of patentability may be resolved before claim construction, and that invalidity under section 101 is a question of law. In re Bilski, 545 F.3d 943, 951 (Fed. Cir. 2008).

Defendants argued that Claim 1 is unpatentable subject matter because it fails the Federal Circuit’s “machine-or-transformation” test and violates the Supreme Court’s bright-line prohibition against patenting mathematical formulas and abstract ideas.  “Although Uniloc originally questioned the timing of Defendants’ section 101 validity arguments,” Judge Davis noted, “Uniloc agrees to resolution of this issue on the merits at this stage to advance the litigation.”

Judge Davis concluded that the asserted claim did not “recite a machine” (a lovely phrase for steampunk buffs) nor did it meet the transformation prong of the test. While this alone did not render it patent-ineligible, he found that it was a mathematical formula that is unpatentable under section 101, and that its identity as a mere improvement to a mathematical formula “would cover vast end uses, impeding the onward march of science” to borrow a phrase from the Supreme Court in Benson (again, I’m seeing steampunk imagery here, or at least a perturbed H.G. Wells) and thus under Flook was not an exception to the otherwise unpatentable subject matter.

 

 

CEATing Together at Trial: Chief Judge Davis on Joinder and Severance/Consolidation for trial post-EMC

  Wi-Lan v. HTC, et al., :10cv521 (3/18/13)

Judge: Leonard Davis

Holding: Motion to Sever GRANTED; 

Earlier this week Chief Judge Leonard Davis entered two key orders in the Wi-Lan litigation dealing with how pre-AIA cases are handled as far as severance and consolidation for trial which may be of interest to practitioners.

Wi-Lan initially brought suit against eleven defendants prior to enactment of the AIA.  An initial motion to sever was denied.  Four defendant groups now remain in the case, and one of these remaining defendants HTC file a renewed motion to sever, noting In re EMC I, which was decided after the Court denied the initial motion to transfer.  

Severance - FRCP 20

Judge Davis quoted In re EMC's holdings that "joinder is not appropriate where different products and processes are involved", "independently developed products using differently sourced parts are not part of the same transaction [requirement of FRCP 20], even if they are coincidentally identical", and the "mere fact that infringement of the same claims of the same patent is alleged does not support joinder, even though the claims would raise common questions of claim construction and patent invalidity."  However, he noted, "the Federal Circuit also made clear In re EMC is not an absolute bar to joinder. Rather, "the fact that the defendants are independent actors does not preclude joinder as long as their actions are part of the 'same transaction, occurrence, or series of transactions or occurrences.'" In re EMC, 677 F.3d at 1356. The "transaction or occurrence" test is applied on a case-by-case basis "based on a flexib[le] . . . standard [that] enables the federal courts to promote judicial economy by permitting all reasonably related claims for relief by or against different parties to be tried in a single proceeding under the provisions of Rule 20." Id.

Judge Davis then noted that In re EMC requires both: (1) products or processes that are the same in respects relevant to the patent; and (2) an “actual link between the facts underlying each claim of infringement" citing In re EMC and Judge Gilstrap’s recent opinion in Negotiated Data Solutions v. Apple, Inc., 2012 U.S. Dist. LEXIS 174839, *6 (E.D. Tex. Dec. 2012).  (How helpful - now we have cases to cite to from both Marshall and Tyler).

Here, HTC argued that the parties’ accused products  — base stations and cell phones — are different.   “Though there are two different categories of products,” Judge Davis observed, and they do have “general differences”, both categories are involved in wireless data transmission and “their accused properties—specific communication methods—are tightly interrelated … [and] “[i]t is the method of communication that is the domain of the patents in suit.”

But commonality of accused products or processes is not enough, the Court continued - in fact the presence of even identical products is not enough under In re EMC.  There must also be an “actual link” between the facts underlying each claim of infringement.  Relevant factors in considering whether joinder is proper include:

1. the temporal proximity of alleged infringement;
2. the relationship among defendants;
3. the use of common components in the accused products;
4. licensing or technology agreements between defendants;
5. shared development and manufacturing; and
6. whether the damages sought are based on lost profits.

Id. at 1359–60.  After considering these factors, Judge Davis concluded that the “actual links” in this case were insufficient to satisfy this prong of the analysis.

First, though infringement is ongoing as to all defendants and is thus occurring during the same time period, the hypothetical negotiation dates are significantly different. Second, some licenses exist between HTC and other defendants, but HTC asserts—and Wi-LAN does not dispute—that the licenses are unrelated to the technology at issue. The only factor that favors joinder is the fact that there is a common component in the accused products. Non-party Qualcomm supplies chips used by both HTC and Sony in most of their accused handsets. These chips include software that provides some of the functionality that is pertinent in establishing infringement.  These identically sourced components are a link, but not a sufficient link to require joinder in light of In re EMC.

Consolidation - - FRCP 42

Okay, so the plaintiff's claims against HTC are severed into a separate cause of action.  What's next?  Amazingly, another order - this time a ruling on the parties' proposed trial plan for this case.  Responding to the Court’s order to submit proposed a proposed trial plan, plaintiff Wi-Lan proposed (1) one trial with all four defendants or (2) an invalidity trial first followed by a liability and damages trial against Sony and HTC, and then a liability and damages trial against Alcatel and Ericsson. Alcatel, Ericsson and Sony agreed to a single trial, but requested more time for that trial than Wi-Lan proposed.  HTC pointed to its Motion to Sever (see above) and requested a separate trial from the remaining defendants.  After hearing argument from the parties, the Court offered HTC the option of a separate trial on infringement and damages if it would agree to try the issue of invalidity along with the other defendants in the first trial. HTC did not accept the Court’s proposal, contending that under EMC and its progeny, it is entitled to a separate trial on all issues.

In his trial plan order, Judge Davis reviewed the rules dealing with consolidation and bifurcation, quoting the Federal Circuit’s statement in EMC that “[i]n exercising its discretion, the district court should keep in mind that even if joinder is not permitted under Rule 20, the district court has considerable discretion to consolidate cases for discovery and for trial under Rule 42 where venue is proper and there is only a ‘common question of law or fact.’” The Court concluded that “[t]hus, even if joinder is improper under Rule 20, the Court has discretion to consolidate cases for trial where—as here—it is an appropriate use of judicial resources and would not unduly prejudice a party.”

The Court then addressed the issues raised in trials in multidefendant cases.  "The Court has handled numerous multi-defendant patent cases over the years and always strives to balance the interests of all parties involved when fashioning a trial plan," he began, providing brief summaries of the individual trial plans in the CEATS, CSIRO, Fractus, Bedrock, and Eolas multiparty trial plans.  (In case you had not guessed, this is not Judge Davis' first day at this particular circus.  Or as one wag put it, "same circus, different clowns.")  "If separate trials are the best way to handle a case, the Court will set multiple trials. The Court has previously articulated a number of factors it considers when deciding whether multiple trials are, and the relevant factors to be considered in crafting each case’s trial plan appropriate. CEATS, Inc. v. Continental Airlines, Inc., et al, 6:10cv120, Docket No. 888. (“the CEATS factors”). While no single factor is dispositive, the following factors are considered in balancing the equities to all parties involved:

1. number of defendants;
2. number of patents;
3. number of asserted claims;
4. complexity of the technology involved;
5. similarity of functionality of accused instrumentalities;
6. consistency of plaintiff’s damages model against distinct defendants, e.g., single expert report as to all defendants, how distinct is the theory of infringement and damages in the expert report as to individual defendants, etc.;
7. consistency of defendants’ non-infringement, validity, and damages positions, as exemplified by, among other things, expert reports, e.g., single or multiple experts on non-infringement; single or multiple experts on validity, single or multiple experts on damages, etc.;
8. collaboration by defendants, e.g. joint defense groups, one firm representing multiple defendants, etc.;
9. risk of inconsistent results on common issues of fact or law;
10. risk of jury confusion;
11. cost of multiple trials to the parties;
12. the Court’s schedule and resources; and
13. other individualized issues specific to a particular case.

Id. As always, the Court noted, "the overall consideration is finding an equitable and fair trial plan for all parties—which inevitably requires compromise."  Here, Judge Davis concluded that the balance of the CEATS factors favored a single trial.   

"The case involves two related groups of defendants with similar and interrelated products, common asserted patents, and overlapping experts with similar theories as to infringement, invalidity, and damages. If the Court adopts HTC’s proposal, the jury in trial one will hear from all of Wi-LAN’s witnesses, Mr. Lanning, two damages experts, and three separate infringement experts who will all give similar opinions. Then the jury in trial two will hear from all of Wi-LAN’s witnesses (who would have to be presented a second time), Mr. Lanning again, Mr. Bakewell again, and another infringement expert who echoes the opinions offered in trial one. Tr. at 54:19–20.

At the hearing, the Court asked HTC to articulate the prejudice it would suffer from a combined trial. Essentially, HTC’s argument was that much of the trial would be inapplicable to HTC. After reviewing the common issues and witnesses, this argument is not compelling. Additionally though, HTC did not articulate one of the real prejudices the Court sometimes sees in a multiple defendant trial. For example, HTC is not in a position where it is lumped into a trial with other defendants who are accused of willful infringement when it is not. Willfulness is not an issue in the case. Nor does HTC point to significantly different damage amounts, where one defendant is accused of a dramatically larger damages number, which might prejudice the other smaller defendants.

Despite the Court’s belief that a single trial is justified, the Court offered HTC the following option:

THE COURT: Well, then in which case let me make this proposal to you: What if I were to give HTC the option of you can either go in the first trial with the other three defendants as to both infringement and invalidity, or you can go in a second trial as to infringement; but you will agree to be bound by the invalidity finding in the first trial?

HTC refused to be bound by the first invalidity finding, even if it were allowed to participate in the first trial as to invalidity. It seems then, that HTC wants Defendants to have multiple bites at the invalidity apple. That is a waste of judicial resources and risks inconsistent verdicts."

“For these reasons,” the Court concluded, “the Court exercises its considerable discretion in consolidating cases for trial under Rule 42 and ORDERS that HTC is consolidated with the remaining defendants for trial. These cases will proceed to the jury as a single trial on all issues and as to all parties.

 

 

VirnetX verdict

Last week while I was courting danger on a cruise ship in the Caribbean (read the news - it's a dangerous activity these days) during my boys' spring break, the lawyers in the VirnetX v. Cisco case were spending a presumably less stressful few days concluding their trial.  

As I posted recently, this is the second VirnetX trial in Judge Davis' court, and this one concluded on a happier note for the defendant, with the jury finding that none of the twelve asserted claims were infringed, but that Cisco had failed to prove by clear and convincing evidence that the ten claims alleged to be invalid were in fact invalid.  The damages question was answered as zero, and the jury did not answer the questions regarding willful infringement (the subjective prong only, since objective is now an issue of law for the Court) since it was conditioned on a finding of infringement.

Court denies injunction; sets ongoing royalty of 60 cents per smartphone

Fractus v. Samsung, 6:09cv203/6:12cv421

Judge: Leonard Davis

Holding: Motion to Set an Ongoing Royalty GRANTED IN PART

Judge Davis conducted the jury trial in this case, at the end of which the jury found that Samsung infringed the asserted claims, that the claims had not been shown to be invalid, and awarded $23.12 million in damages.  Fractus then requested a permanent injunction or in the alternative a royalty rate of $1.06 per phone.  Judge Davis denied the request for an injunction, gave the parties an opportunity to negotiate a license, and when they did not, set an ongoing royalty rate of 60 cents a phone.

To provide some metrics, Fractus argued that the Read factors warranted a higher royalty rate than the implied rate of 35.5 cents found by the jury due to changed market circumstances.  Judge Davis noted that he previously enhanced the jury's verdict by 1.65x, which translates into an ongoing royalty rate of $.59 per phone.  "Considering Samsung's post-verdict conduct and the Court's prior enhancement of the verdict," Judge Davis concluded that an ongoing royalty of $.60 per phone on all adjudicated models was proper.

VirnetX - past, present and future

GALADRIEL: Will you look into the mirror?

FRODO BAGGINS: What will I see?

GALADRIEL: Even the wisest cannot tell for the mirror shows many things. Things that were. Things that are. And some things... that have not yet come to pass.

The Fellowship of the Rings (the movie, not the book)

Well, it's mirror-watching week for VirnetX again in Tyler, as Judge Davis gets its case against Cisco underway.  This post, however, recaps the final outcome of its last trial, against Apple in November, which resulted in a lengthy (47 pages) order from Judge Davis last week resolving the various postjudgment motions.  (And you know how much I like JMOL rulings).

The bottom line is that VirnetX' $368.16 million verdict against Apple stood, with interest tacked on, but it did not get an injunction shutting down Apple's FaceTime application (my connection speeds pretty much do that anyway most of the time, so it's not like I'd notice).   Apple's JMOL, new trial and remittitur motions were denied, VirnetX's motion for postverdict damages and pre and postjudgment interest was granted in part, and its motion for an injunction was denied, with the customary severance for ongoing royalty instead.  VirnetX also sought attorneys fees and judgment on Apple's "late-abandoned counterclaims and defenses, including all of Apple's Alleged Prior Art References" both of which were denied.

With respect to the request for attorneys fees, Judge Davis noted that VirnetX argued that Apple’s alleged litigation misconduct and the application of some Read factors made this case exceptional. Specifically, VirnetX claimed that Apple disregarded the Court’s orders on several occasions, urged meritless defenses, concealed its primary infringement defense until the eve of trial, contradicted prior representations it made to the Court, failed to comply with the local rules during discovery, and generally "acted like a knave."   (I'm thinking that maybe the word was different in the first draft - so glad it was corrected to a term that is so commonly used locally.  I can't tell you the number of times I've been on a call or in a deposition or hearing and just thought, "gee, what a knave.").

Well, as compelling and persuasive as the language was, it was really more like a pair of sixes, Judge Davis concluded.  "Although Apple failed to always act as professional as this Court expects," he wrote, adding parenthetically (okay, actually in a footnote) that the litigious nature of these proceedings "does not excuse a party from acting with the courtesy and respect one should afford a fellow professional," he found that the misconduct did not rise to the level that warranted the award of attorneys’ fees.

"There is little, if any, evidence that Apple intentionally disregarded this Court’s orders or explicitly contradicted statements it made to the Court. Apple was guilty of misconduct when it improperly terminated a deposition, however, Apple has already been sanctioned for this behavior.  As to Apple’s other incidents of “egregious” behavior, it does not appear that Apple acted in bad faith. At best, VirnetX cites to some occasions of rude behavior, but this alone does not support declaring this to be an exceptional case."

VirnetX also wanted judgment on all of Apple's invalidity defenses and counterclaims, including prior art references that were asserted up to the time of trial, but not at trial.  Judge Davis rejected this request as well:

The Court cannot and will not enter judgment upon claims and defenses that were not presented for consideration to the jury. There is no basis to enter such a judgment, no more than there is a basis to enter judgment of non-infringement for Apple as to VirnetX’s unasserted claims. The Court encourages and requires the parties to narrow their case for trial. Accordingly, the Court will not penalize such attempts to narrow issues by entering judgment on issues not presented at trial.

(Internal citations omitted).

UnSkyhooked: Claims against Google ordered severed from other defendants due to pending litigation with codefendant Skyhook

Tracbeam v. AT&T, et al., 6:11cv96 (1/23/13)

Judge: Leonard Davis

Holding: Motion to Sever GRANTED

This patent case involves two defendants, Google and Skyhook (what a shame it isn't Skyfall, so I could load this post with Bond references), who are adverse in other litigation.  One defendant, Google, asked for a severance from the rest of the defendants, including defendant Skyhook as a result, and plaintiff opposed. Judge Davis agreed with Google's position:

Google’s position in this lawsuit is distinguishable from an ordinary situation where two competitors are joined as co-defendants. Google and Skyhook are more than competitor co-defendants—they are also adversaries in another lawsuit involving similar technologies and patents as the present suit. Skyhook also has pending patent applications claiming priority to patents asserted against Google in the Massachusetts Suit.  This creates a very real threat that Skyhook will (even unintentionally) use confidential information obtained from Google in the Texas Suit during prosecution of its pending applications. There is also a threat that Skyhook will use confidential Google information obtained in the Texas Suit against it in the Massachusetts Suit. This conflict puts Google between Scylla and Charybdis. It must choose between: (A) sharing information with Skyhook to benefit the Texas Suit at the expense of the Massachusetts Suit; or (B) withholding information from Skyhook to benefit the Massachusetts Suit at the expense of the Texas Suit. Google’s untenable position can be mitigated by severance from the remaining Defendants.  See F ED. R. C IV. P. 20(b) (stating a court may order separate trials to protect a party from prejudice).

Judge Davis also held that severance was proper under FRCP as interpreted by In re EMC anyway because the case involved different products or methods of infringing in a similar manner.

Notably, Judge Davis did not consolidate the severed case with the other cases for pretrial.  "Because of the inherent prejudice to Google resulting from its concurrent lawsuit against Skyhook," he wrote, "the Court will not consolidate Google with the remaining Defendants for pre-trial under Norman IP. See Norman IP Holdings, LLC v. Lexmark Int’l, Inc., 2012 WL 3307942 (E.D. Tex. Aug. 10, 2012) (Davis, J.). 

Tyler jury returns $368 million verdict against Apple

It's been a slow month for patent cases this month in the Eastern District, but yesterday a Tyler jury in Chief Judge Leonard Davis' court changed that with a verdict of $368,160,000 against Apple in VirnetX v. Apple, 6:10cv417.  All sixteen claims across the four patents were found infringed, and none were found invalid.

Motion to Strike Plaintiff’s Infringement Contentions Denied (and more)

Tracbeam v. AT&T, et al., 6:11cv96

Judge: Leonard Davis

Holding: Motion to Strike Plaintiff’s Infringement Contentions DENIED (and keep reading)

Two defendants filed motions to strike the plaintiff's infringement contentions, which were nearly identical and which Judge Davis found presented the same legal issue.

Importantly, Judge Davis noted that the parties disputed the exact nature of the products and services that the plaintiff accused of infringement.  The plaintiff contended that the accused instrumentality was each defendant's "location – based platform" while defendants argued that the accused instrumentalities were their "location – based services." Essentially defendants believe that the plaintiff accused several of their products of infringement, while plaintiff argued it accused the entire platform that the defendants used to facilitate these services.

This basic disagreement gave rise to the dispute in that because the plaintiff believed that it accused a single instrumentality of infringement, it disclosed a single claim chart to each defendant for that defendant's location – based platform. The claim charts referred to defendants' location – based services, but they did not include claim charts for each individual location – based service.  Defendants filed a motion to strike the contentions, claiming that they violated the local patent rules because they did not provide separate claim charts for each accused instrumentalities. Judge Davis disagreed:

The local patent rules were adopted to ensure each side has the information necessary to litigate its case. Under the local rules, a plaintiff’s infringement contentions must set forth its specific theories of infringement.  Infringement contentions must contain enough specificity to provide defendants with notice of the plaintiff’s infringement theories. However, infringement contentions do not need to meet the level of detail required for a motion for summary judgment; infringement contentions “are not meant to provide a forum for litigation of the substantive issues.”
TracBeam’s Infringement Contentions, proposed amendments, and the resulting correspondence between the parties give Defendants sufficient notice of TracBeam’s theory of infringement. The Infringement Contentions articulate TracBeam’s specific theory of infringement against AT&T and Cellco-TracBeam accused Defendants’ respective “location-based platforms” of infringement. Each individual location-based service operates within the larger context of Defendants’ location-based platforms. Since the accused instrumentalities are AT&T and Cellco’s overall location-based platforms, it would be improper to require TracBeam to submit individual claim charts for each location-based service. Instead, TracBeam’s Infringement Contentions satisfy the local rules.

(Internal citations omitted).

Yea, even as I type this another order in this case just crossed my desk in this case in which Judge Davis denied an intervenor's motion to dismiss the plaintiffs allegations for failure to state a claim of willful infringement.  So this post will be an uncredited double feature of sorts.

The intervenor's argument was that the plaintiffs willful infringement claim should be dismissed because the allegations in the plaintiffs pleading were insufficient to demonstrate that it acted despite an "objectively high likelihood its actions constituted infringement." Judge Davis concluded that the allegations were in fact sufficient. Next the intervenor argued that the allegations failed to allege willfulness before the lawsuit was filed. Judge Davis concluded that the plaintiff was permissibly advocating that the action between the intervenor and the plaintiff commenced when the intervenor joined the case one year after its filing date.

Well, dammit, here's another one.  In this order, Judge Davis granted the defendants motion for leave to amend their invalidity contentions and denied the plaintiffs motion to strike those same contentions.

"These two motions boiled down to a dispute over five prior art references," Judge Davis writes. These five references were part of 10 which were not accompanied by charts identifying where each claim term was found in that reference in the defendants' original invalidity contentions. On April 4, 2012 the plaintiff moved to strike the 10 uncharted references, and defendants countered by seeking leave to amend their contentions to add charts for the references. Judge Davis denied the motion to strike and granted the motion for leave to amend noting that "[b]ecause of the unusual procedural history of this action" invalidity charts for the five references had already been properly and timely disclosed to the plaintiff because they were contained in the invalidity contentions served on the plaintiff by two intervenors.  See above.

The plaintiff argued that the defendants should not be allowed to amend their invalidity contentions because they failed to meet their burden to establish diligence, and because it would suffer prejudice because if the intervenors settle, their invalidity contentions would no longer be part of the case. Judge Davis disagreed, noting that the defendants did not seek to add any new prior art references, and that the charts in question had already been disclosed. "This is not a situation where TracBeam will have to prepare for new invalidity arguments at an advanced stage of litigation. Rather, TracBeam will simply have to address duplicate arguments from additional parties." Accordingly the motion for leave to amend was granted

Motion to Dismiss Succeeds as to Direct and Inducing Infringement

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.

Another JMOL affirming defense win

CEATS v. Continential Airlines, et al., 6:10cv120 (8/10/12)

Judge: Leonard Davis

Holding: Motions for Judgment as a Matter of Law DENIED

As readers will recall, after a seven day trial, a jury in Chief Judge Davis' court found infringement of the asserted claims of the patents in this case (the issue of willfulness was bifurcated for later determination by the Court) but that the patents were invalid as anticipated and obvious.

Judge Davis denied the plaintiff's motion for judgment as a matter of law, finding after a lengthy discussion of the riveting law on corroboration that the jury's verdict was not based solely on uncorroborated oral testimony "but on sufficiently corroborated evidence" and that there was a sufficient evidentiary basis and substantial evidence to support the jury’s verdict that the asserted claims of the patents-in-suit are invalid as anticipated and as obvious.  He also denied CEATS' motion for new trial.

Judge Davis also denied defendant Airtran's JMOL motion on the infringement findings, as well as a similar motion by defendants Continental Airlines, Inc.., Ticketmaster, LLC, TicketsNow.com, TNow Entertainment Group, Inc., United Airlines, Inc., Delta Airlines, Inc., US Airways, Inc., JetBlue Airways Corp., Alaska Airlines, Inc., Horizon Air Industries, Inc. (d/b/a Horizon Air), and Virgin America, and by Defendants JetBlue and Alaska.  The defendants' agreed motions for bill of costs was granted.