Getting ready to go talk to students at my alma mater St. Joseph's Elementary School here in Marshall tomorrow morning about being a lawyer. Of course when I was a student there no one had any idea I might grow up to be an attorney...
Last week Judge Gilstrap granted another 101 motion in a multidefendant cases. Originally filed against nine defendants, and apparently still pending against five (give or take) at the time of the ruling, the patent asserted involved a system which the Court concluded lacked an inventive concept as required by Alice.
Ran across a really good article by Erin Coe of Law 360 Patent Fights Get Shake-Up Under Fed. Rules on Discovery last week. Don't agree with all of it, and there are some tactical nuances that remained hidden even after reading it, but overall it's a really good exposition of the way the new "proportionality" standard may affect discovery in patent litigation.
Not all patent defendants had the good week my clients did. This afternoon a Marshall jury broke its long win streak in favor of defendants (the win streak for defs that hit six with SteelSeries' win yesterday was mostly Marshall with an assist from Tyler Division jurors). A Marshall jury in Judge Gilstrap's court returned a verdict in favor of the plaintiff in a competitor case, found invalidity had not been proved, and awarded $8.1 million.
Two weeks into the new year then, we are at one win for each side of the docket after a long and hard week for a courthouse full of clients, lawyers, judges, court staff and jurors.
I am a few days late posting about this due to my trial that concluded yesterday, but my contribution to the 2015 Year in Review article in the Texas Bar Journal on patent litigation in Texas is out and available here. In the article, I review recent legislative activity in the patent arena both in the Texas Legislature and the U.S. Congress as well as notable activity in Texas during the year implementing recent Supreme Court cases, in particular Alice and Octane Fitness.
Judge Gilstrap's ruling in the eDekka case on the motion to dismiss for lack of patentable subject matter jurisdiction under 101 is discussed before I move on to activity from Texas district courts on fee applications under the new standard after Octane Fitness under 285. I covered the opinions by Judge Yeakel and Judge Costa that I previously posted on – obviously had Judge Gilstrap's opinion on 285 in eDekka come out before press time, it would've been included as well. (I tried - but there are limits to what even past TBJ chairs can pull off).
I am very happy to be able to congratulate my clients Steelseries ApS and Steelseries North America Corp. and cocounsel Esha Bandyopadhyay, Jim Heiser, Josh Masur, Eric Silvestri, Sara Ghadiri, and Louis Wai on a win in Better Mouse Company v. Steelseries today before a Marshall jury in Judge Roy Payne's court. After hearing approximately two days of evidence, the jury found that the asserted claims were not infringed.
For those keeping count, that's six consecutive defense verdicts in patent cases in the Eastern District. There is another trial going forward in Judge Gilstrap's courtroom upstairs this week, so it'll either break the string or become number seven.
Can't tell you happy I am for our hard-working trial team. And it'll be good to see my kids again, and there's this woman living upstairs in my house that I think I used to know ...
Rothschild Location Technologies LLC v. Geotab USA, Inc., 6:15cv682-RWS-JDL (1/4/16)
Plaintiff Rothschild Location Technologies LLC has filed 55 patent infringement cases - 21 in Delaware in 2014, and 34 in the Eastern District of Texas in 2015. It does not appear that the 2014 Delaware cases have resulted in a determination on the merits of its patents, but earlier this week the 2015 Eastern District of Texas cases did. Judge Love granted the motion to dismiss in this case (which consolidating the 2015 actions) under section 101, finding that the patent was "plainly directed to an abstract idea performed on components with well – known, conventional, and routine functionality." This joins Judge Gilstrap's recent opinion in the eDekka litigation in granting 101 motions directed to "bulk filer" cases, as well as orders by Judge Schroeder and Judge Bryson granting on 101 grounds in more thinly populated cases.
Similar to eDekka, Judge Love found that the 101 issue was ripe at the pleading stage, and that claim construction was not required. He further found that even adopting the plaintiff's proposed construction would not impact the analysis. "The parties have not sufficiently identified any claim dispute or factual issue. Accordingly, there is no reason to delay a 101 ruling and require the parties to expand additional resources that ultimately will not impact or aid the patent – eligibility determination."
Although termed a report and recommendation, Judge Love's order notes that some of the remaining defendants have consented to him for trial (the plaintiff had), so I assume the report will actually operate as an order granting the motion to dismiss in those actions. The plaintiff would have the option of filing objections to the report with Judge Schroeder as to the remaining defendants.
I wanted to make sure that everyone was aware that the seminar that I had posted on previously by the Federal Circuit Bar Association Transitions: The Profession and the Next Generation is going forward January 21, 2016 at the Center for American and International Law in Plano. The brochure for the event is attached here. Download Fed Cir Transitions Program 012016 . As previously noted, the event is intended to raise awareness of the need to provide young and diverse lawyers with courtroom opportunities.
But the event is already having an impact in practice. Magistrate Judge K. Nicole Mitchell of Tyler issued an order in a pending case stating:
The Court is aware that in today’s practice of law, fewer cases go to trial and there are generally fewer speaking opportunities in court, particularly for young lawyers (i.e., lawyers practicing for less than seven years). The Court strongly encourages the parties to be mindful of opportunities for young lawyers to argue in front of the Court, particularly for motions where the young lawyer drafted or contributed significantly to the underlying motion or response. With that in mind, the Court has currently set the Markman hearing in this case for the morning of January 12, 2016. To the extent that any party planned to submit any of the disputed terms on the papers alone, the Court will grant additional time to argue those terms, if they are argued by an attorney with seven or fewer years of experience.
(Emphasis mine). The order joins prior similar orders by, for example Judge Barbara Lynn of the Northern District of Texas encouraging similar opportunities.