Plaintiff filed a motion to correct inventorship following a jury verdict of invalidity and noninfringement and remand of the case from the Federal Circuit. In his JMOL ruling in the case Judge Gilstrap granted JMOL as to two of the jury's three bases for invalidity, but denied it as to improper inventorship and declined to make an indicative ruling on the motion to correct inventorship while the appeal was pending.
The Federal Circuit subsequently deferred to the trial court the decision whether to correct inventorship, and the Court granted the motion, thus vacating the judgment of invalidity (but not of noninfringement).
Texas Lawyer's Angela Morris has an article out today on the Texas Senate's recent action passing a bill that would authorize the Texas Attorney General to sue entities that send letters in bad faith to end users alleging that people infringe on their patents. I had an opportunity recently to analyze both the Nichols bill that passed the Senate and another bill introduced in the House for Tex-ABOTA, so the issue is one that I am interested to see the progress on.
SB 1457 adds a section to the Texas Deceptive Trade Practices Act prohibiting someone from sending end users demand letters in bad faith, which it defines as a communication that falsely states that the sender had filed a lawsuit, made a claim that was objectively baseless because the sender didn't have a right to license or enforce the patent, or because the patent was invalid, unenforceable or expired. Additionally, any letter must list the patent holder's identity, the patent, and the way that the end user had allegedly infringe the patent. If the AG chooses to sue a violator, it could seek injunctive relief, civil penalties, reimbursement to the state for investigation and prosecution costs, and restitution to victims for legal and professional expenses.
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.
For those that have not seen it yet, here is a link to KLTV-Tyler's ten-minute special report Wednesday night on the patent docket in East Texas. The text of the story is online, but a link to the video is included as well.
Reporter Taylor Hemness' feature is not your typical 90 second "gee there are lawyers in suits all over the square - wonder why?" story, and includes a lengthy interview with U.S. District Judge Leonard Davis about the docket.
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.
Last fall I posted on Judge Mitchell's order denying Newegg's request for attorneys fees following the plaintiff's voluntary dismissal of its case. Newegg sought reconsideration before Judge Schneider, who declined to overturn her findings and instead adopted her opinion is the opinion of the Court.
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.