Eastern District of Texas Federal Court Practice

Defendant's Motion for JMOL on Obviousness Denied

Power-One, Inc. v. Artesyn Technologies, Inc., --- F.Supp.2d ----, 2008 WL 1746634(E.D.Tex. Apr 11, 2008) (NO. CIV. A. 2:05-CV-463)
Judge: John Love
Holding: Defendant's Renewed Motion for a Judgment as a Matter of Law and Alternative Motion for New Trial of Invalidity DENIED
Plaintiff Power-One sued Defendant Artesyn Technologies for patent infringement.  In November of 2007, a jury found that Artesyn infringed seven claims of one patent, but none of the claims of the second patent.  The jury also found that Artesyn failed to prove by clear and convincing evidence that the claims of the two patents were invalid. At the close of trial, Artesyn moved for JMOL on the grounds that both patents were invalid for obviousness, and renewed that motion postjudgment, i.e. here, also seeking a new trial on the issue in the alternative.
Judge Love's opinion is an exhaustive recitation of the evidence on the obviousness issue presented at trial.  "After reviewing the record and considering Artesyn's arguments, the Court finds substantial evidence in the record supporting the jury's factual findings on validity," Judge Love concluded, "and the Court also finds that Artesyn failed to meet its burden at trial of establishing obviousness by clear and convincing evidence."
"In ruling on a motion for JMOL, the Court does not make credibility determinations and must draw all reasonable inferences in the light most favorable to the verdict," Judge Love noted, flagging the relevant standard of review of the jury's determination.  Artesyn "failed to show that the evidence points so conclusively in favor of a finding of obviousness that reasonable jurors could not arrive at a contrary verdict."

Motion for Stay Pending Reexam Granted

Spa Syspatronic, AG v. Verifone, Inc., 2008 WL 1886020(E.D.Tex. Apr 25, 2008) (NO. CIV.A. 2:07-CV-416)
Judge: John Love
Holding: Motion for Stay Pending Reexam GRANTED
Yes, you read it right - the request for a stay pending reexam was granted.  Judge Love cited a couple of factors as specifically supporting a stay in this case.  First, he was not persuaded Spa would suffer any undue prejudice or tactical disadvantage, because while Spa argued that VeriFone unduly delayed in seeking reexamination, he found that VeriFone acted diligently.  "Moreover," he wrote, "Spa's argument regarding VeriFone's delay is somewhat disingenuous. While Spa contends that it has been negotiating with VeriFone, it nonetheless brought its lawsuit late in the '862 patent's life, which ultimately resulted in a trial date after the expiration of the patent's twenty year term . . .  Since Spa will apparently be unable to enforce its exclusive intellectual property rights in the '862 patent post-trial, a permanent injunction to prevent future infringement will be unavailable as a remedy, and therefore damages and pre-judgment interest provide an adequate measure of relief to Spa for any infringement finding.  Moreover, the parties are apparently not direct competitors in the marketplace, and therefore a stay is also unlikely to directly prejudice Spa's standing in the market during the remainder of the '862 patent's life, making any harm from delay even less acute."
"Awaiting a reexamination is particularly pertinent in this case," he continued "since the '862 patent's European counterpart was recently revoked after reexamination for lack of novelty. While the Court is cognizant of the differences between the United States and European patent systems, and also cognizant that the invalidation of the European patent on its own has little bearing on the validity of the '862 patent in the United States, proceeding with litigation on a patent whose counterpart has already been invalidated is a questionable expense of the Court and parties' resources, particularly when considering the frequency with which the PTO modifies claims in some manner. Aside from the European invalidation, VeriFone also presented other potentially invalidating prior art to the PTO which the PTO stated raised substantial questions of patentability. The risk of proceeding through a trial only to have the PTO modify the claim terms (or revoke the patent entirely) and force the parties to relitigate vastly outweighs any benefits of continuing litigation currently in its infancy."

Court Provides Dual Transfer Analysis (In re VW I; In re VW IIb)

Aloft Media, LLC v. Adobe Sys. Inc., 2008 WL 819956 (E.D. Tex. Mar. 25, 2008)
Judge: John D. Love
Holding: Motion to Transfer DENIED
This is a patent case in which a Texas corporation headquartered in California sued Adobe and Microsoft (Delaware and Washington companies, respectively, headquartered in California and Washington).  Defendant Adobe sought a transfer to California.  The interesting thing about this opinion is that it's the first (at least that I have seen) since In re VW IIb was vacated pending the en banc proceeding on May 19.  Since the parties had briefed the issue under In re VW IIb, Judge Love had the following to say about his analysis, which applied both In re VW IIb and the prior standard, and found that the defendant had not justified a transfer under either standard:

Due to the uncertainty surrounding the applicable legal standard governing Section 1404(a) venue transfer motions, the Court will proceed with the following dual approach. First, the parties have largely submitted their positions based upon the legal standard articulated in Volkswagen II. The Court further acknowledges that the Volkswagen II opinion, though vacated, is the Fifth Circuit's most recent discussion of the venue transfer standard, and in comparison to prior Fifth Circuit opinions, appears to adopt a slightly lower threshold favoring the party moving for transfer. For these reasons, the Court will provide the moving party with the benefit of the doubt and apply the standard set forth in Volkswagen II. In doing so, the Court finds that the circumstances of this patent case are sufficiently distinguishable from the event-specific circumstances of the Volkswagen II products liability case, such that the circumstances of Volkswagen II do not control. Applying the Volkswagen II standard, the Court finds that transfer of venue is not appropriate for the reasons discussed below.

Second, and in the alternative, the Court recognizes that the Volkswagen II opinion has been vacated by the granting of rehearing en banc. In addition, Adobe states in its Motion that it does not rely solely upon the standard expressed in Volkswagen II. ...  For these reasons, the Court will consider in the alternative Adobe's Motion under the Section 1404(a) legal standard that existed prior to the Fifth Circuit's discussion in Volkswagen II. Applying the previously existing standard, the Court similarly finds that transfer of venue is not appropriate for the reasons discussed below.

Defense verdict in Marshall civil right case arising out of hospital altercation case

A Marshall jury in Judge John Love's court rendered a defense verdict yesterday in a civil suit arising out of an incident at Marshall Regional Medical Center.  The jury came back after about half an hour of deliberations.
The jury was asked in Marshall law enforcement had used excessive force when arresting the plaintiff (now an inmate at the Tennessee Colony) following a shootout at nearby Smith Park.  The plaintiff was part of a crowd at the hospital's emergency unit, and refused to move away when ordered by police.  More details are available in the Marshal News Messenger's article on the verdict, reported here.

"Choose Love" status conferences in Tyler

The consent/status hearings begun by Judges Ward and Everingham in Marshall last November have migrated to Tyler, where Judges Leonard Davis and John Love held status conferences in ten pending patent cases last week.  One case was a no-show, prompting entry of a show cause order by Judge Davis why the case should not be dismissed, but of the other nine, four consented to trial before Judge Love.  Judge Love will also handle the Markman proceedings in two of the remaining five.
(Ed. note: Credit should go to Carl Roth of Marshall for the caption of this post - he wanted to stand up and announce "I choose Love!" at the hearing but didn't get the chance, but the idea certainly seemed worthy of plagiarization.  Readers are invited to submit names for the Marshall equivalent for these hearings - "Hanging with Chad" is the current favorite, and has approximately the same level of bad pun).
Latest patent trial in Marshall was argued today - should have a verdict later this afternoon, I expect - I'll post on it then.

Claims Construction Order in Nubra Case

Black v. Ce Soir Lingerie Co. Inc. et al., (Dec. 12, 2007)
Judge: Lohn Love
Holding: Claims construction ruling
You just gotta love an order construing the term "nipple cover" by a judge named Love.  That's all I'm going to say.

Mixed verdict in Power-One v. Artesyn

You leave town for a couple of days and everybody decides to go to trial...
I already noted the defense verdict in CAC v. Microsoft last Thursday - turns out there was another jury verdict in a patent case on Thursday, this time in Power-One, Inc. v. Artesyn Technologies, Inc., tried before Magistrate Judge John D. Love in Marshall.  The case was filed in Marshall and assigned to Judge Davis - the parties apparently consented to trial before Judge Love, and the case was tried starting with jury selection 11/6.
The verdict came in Thursday, and the jury found one patent infringed and one not, neither patent was proved by clear and convincing evidence to be invalid, and no finding of willfulness.  No finding on damages (was not submitted) and based on the competing press releases it looks like the parties stipulated that damages were $100 in the event infringement was found (big money case, obviously).  Presumably there will be some arguing over an injunction, but apparently there's no accused product out there so I'm unsure what the injunction will say.  Judge Love has directed that postverdict briefing (including on the inequitable conduct allegations) be in by Dec. 7.
I redid my calculations, and that's three plaintiff and six defense outcomes in 2007 (counting TGIP s a defense win since the jury verdict was set aside), for a win rate at trial of 33% so far this year - the two year win rate remains at 50% (again, the national win rate is approximately 58% overall - 67% or thereabouts for jury trials).

Claims Construction Opinion

Foodie Partners v. Jamba Juice Co., 2007 WL 3219495(E.D.Tex. Oct 30, 2007) (NO. CIV.A. 2:06-CV-12)
Judge: John Love
Holding: Claims construction opinion.
Ever wanted to know what "a cold pan" really means?  Here's your answer.

Motion for Reconsideration of Magistrate Judge's Markman Ruling Denied

Sklar v. Microsoft Corp., 2007 WL 2536404(E.D.Tex. Aug 31, 2007) (NO. 206 CV 7)
Judge: Leonard Davis
Holding: Motion for Reconsideration of Magistrate Judge's Markman Ruling DENIED
In an appeal of Judge Love's Markman ruling, Judge Davis held that the magistrate judge had not erred in considering certain prior art, in applying the doctrine of claim differentiation, or in declining to construe certain claims.

Magistrate Judge's Recommendation Accepted; Motion for Summary Judgment of Non-Infringement Granted

Rice v. Honeywell Intern., Inc., 2007 WL 1886224(E.D.Tex. Jun 28, 2007) (NO. 6:05CV330)
Judge: Leonard Davis / John Love
Holding: Motion for Summary Judgment of Non-Infringement GRANTED
Plaintiff filed objections to Judge Love's report and recommendation that the defendant's motion for summary judgment of noninfringement be granted, primarily arguing that: (1) an incorrect standard was applied in granting summary judgment of non-infringement, (2) the Report overlooks competent evidence that defeats summary judgment of non-infringement, and (3) the Report does not adhere to the claim constructions set forth in the Memorandum Opinion and Order on claim construction. For the reasons set forth in his opinion, Judge Davis was of the opinion that the findings and conclusions were correct and adopted Judge Love's opinion.  He noted that "somewhat oddly" the defendant also objected to Judge Love's granting of its motion for summary judgment of invalidity, and overruled those objections.  He also overruled the defendant's objection's to Judge Love's recommendation that their motion for summary judgment of invalidity be denied.  (Judge Love's report is appended to the opinion).