Articles Posted in E.D. Texas

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In this long running patent dispute, the district court denied Apple’s motion to amend the judgment based on a five month delay. The district court explained the long running history of the case as follows: “Nearly 10 years ago, VirnetX sued Apple, alleging Apple’s FaceTime and VPN on Demand features infringed VirnetX’s patents. Four trials, three appeals and a litany of parallel proceedings ensued. Almost three years ago, this Court laid to rest a portion of the parties’ quarrel, entering final judgment in the above-captioned matter. Now, under Rule 60, Apple attempts to resurrect this case for a retrial on damages.”

In its motion to set aside the final judgment under Rule 60(b)(6), Apple argued that the relief was necessary to prevent VirnetX from recovering “a massive damages judgment for patent claims that are necessarily unpatentable.” VirnetX responded that Apple’s motion was untimely, that it attempted to relitigate issues raised on direct review and failed to establish the “extraordinary circumstances” necessary for relief under Rule 60(b).

The district court agreed with VirnetX, noting that motions under Rule 60(b)(6) “must be made within a reasonable time.” FED. R. CIV. P. 60(c). “What constitutes [a] ‘reasonable time’ depends on the facts of each case, taking into consideration the interest in finality, the reason for delay, the practical ability of the litigant to learn earlier of the grounds relied upon, and prejudice to other parties.” Travelers Ins. Co. v. Liljeberg Enters., 38 F.3d 1404, 1410 (5th Cir. 1994) (quoting Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981)). “A district court is provided wide discretion in determining whether a Rule 60(b) motion is filed within a reasonable time.” McKay v. Novartis Pharm. Corp., 751 F.3d 694, 701 n.5 (5th Cir. 2014). Continue reading

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The plaintiff, The Hillman Group, Inc. (“Hillman”), moved to disqualify Cooley LLP (“Cooley”) in this patent infringement action based on its relationship with Minute Key that is now wholly owned by Hillman.  Cooley, which had represented Minute Key throughout its acquisition by Hillman, now represented the defendant in this case, KeyMe, LLC (“KeyMe”).  Cooley had represented Minute Key for approximately 10 years before the acquisition by Hillman.

In the motion to disqualify, Hillman alleged two separate grounds why Cooley should be disqualified: (1) that Cooley should be disqualified because Hillman is a current client of Cooley, and, alternatively, (2) that Cooley should be disqualified because Hillman is a former client and Cooley’s representation of KeyMe in this case is substantially related to Cooley’s past representation of Minute Key and the confidential information it received.

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After the defendants Ingenico S.A.’s, Ingenico Corp.’s, and Ingenico Inc.’s (the “Ingenico Defendants”) prevailed at trial, the defendants filed a Motion to Declare this an Exceptional Case and For Attorney’s Fees Pursuant to 35 U.S.C. § 285.

The district court began its analysis by noting that “[d]istrict courts may determine whether a case is ‘exceptional’ in the case-by-case exercise of their discretion, considering the totality of the circumstances.” Octane Fitness, LLC v. ICON Health and Fitness, Inc., 134 S. Ct. 1749, 1756 (2014). Section 285 imposes ‘one and only one constraint’ on a district court’s discretion to award attorney fees in patent litigation: the case must be ‘exceptional.’ Octane Fitness, 134 S. Ct. at 1755-56. The Ingenico Defendants must show exceptionality by a preponderance of the evidence. Iris Connex, LLC v. Dell, Inc., 2017 WL 365634, at *10 (E.D. Tex. Jan. 25, 2017).”
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As trial approached in this patent infringement action, the plaintiff, 511 Innovations, Inc., filed a motion to exclude a witness at trial, Tim Benner from testifying at trial. The motion asserted that the defendant, Samsung, “did not make any written disclosure of Dr. Tim Benner as a potential witness, or even a person with relevant knowledge, until January 23, 2017.”

The disclosure occurred after the close of discovery and only a few weeks before the pretrial conference. In opposing the motion, Samsung explained that it planned to substitute Dr. Benner as its corporate representative at trial, in place of Joy McBeth.
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In a previous order, the district court granted a motion to stay pending Inter Partes Review (“IPR”) but deferred ruling on the Motion to Stay with respect to EMC Corporation “until EMC Corporation has filed a Notice with the Court indicating whether it is bound by the statutory estoppel provisions of 35 U.S.C. § 315(e).”

Thereafter, EMC filed a Notice stating “if the Court stays the above-captioned litigation pending resolution of the inter partes reviews filed on the asserted patents then EMC agrees to be bound by the full statutory estoppel provisions of 35 U.S.C. § 315.”
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In keeping with the standing order issued by Judge Gilstrap for jury trials that strongly discouraged jury research in the Eastern District of Texas, Magistrate Judge Love recently issued a similar order for patent case pending in the Eastern District of Texas.

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During the trial, the plaintiff, Arthrex, requested that the district court construe the term “proximal end” in certain of the patent-in-suit, U.S. Patent No. 8,821,541 (“the ‘541 patent”). The district court determined that the request for a claim construction was way too late.

The district court began by noting that “Arthrex did not request construction of this term during claim construction, which occurred more than six months ago. Rather, Arthrex requested that the Court construe the term during the Jury Charge Conference– the night before the last day of a five-day trial. ” As explained by the district court, Arthrex based its request on trial testimony from Dr. Alexander Slocum, Defendants’ infringement expert, concerning the plain and ordinary meaning of what he understood “proximal end” to mean. Arthrex then insisted that the district court was required to construe the term because Dr. Slocum’s testimony raised a dispute regarding its meaning. See O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1360 (Fed. Cir. 2008) (“When the parties raise an actual dispute regarding the proper scope of these claims, the court, not the jury, must resolve that dispute.”).
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Tech Pharmacy filed a patent infringement action against Defendant Alixa Rx LLC and Defendant Golden Gate National Senior Care LLC d/b/a Golden LivingCenters (collectively, “Defendants”). Tech Pharmacy subsequently filed its Second Amended Complaint to add the Fillmore Defendants as named defendants with respect to the misappropriation of trade secret, breach of contract, and related state tort claims.

In response, the Fillmore Defendants asserted counterclaims for declaratory judgment of invalidity, non-infringement, and inequitable conduct directed at Tech Pharmacy’s patents. Tech Pharmacy then filed a motion to dismiss the declaratory judgment claims for lack of subject matter jurisdiction because Tech Pharmacy had not asserted the patent claims against the Fillmore Defendants.
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The Defendants filed a motion to strike the Plaintiff’s infringement contentions, including their contentions under the doctrine of equivalents (“DOE”), for failing to comply with the Local Patent Rules (“P.R.”). The Defendants argued that the Plaintiff’s contentions did not comply with P.R. 3-1(d) because the Plaintiff made “impermissible blanket assertions regarding infringement under the doctrine of equivalents.”

P.R. 3-1(d) states that the infringement contentions must disclose”[w]hether each element of each asserted claim is claimed to be literally present or present under the doctrine of equivalents in the Accused Instrumentality.”
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The plaintiff, Chrimar Systems Inc. and Chrimar (“Chrimar”) filed a motion to compel an additional deposition of Defendant D-Link Systems, Inc.’s (“D-Link”) corporate representative, William C. Brown. Chrimar previously took the deposition of D-Link’s corporate representative, pursuant to Federal Rule of Civil Procedure 30(b)(6).

After the deposition concluded, Mr. Brown supplied an errata sheet, correcting numerous portions of his deposition testimony pursuant to Federal Rule of Civil Procedure 30(e). In its motion, Chrimar contends that over 60 answers were materially altered and several answers were changed from “yes” to “no.” As a result, Chrimar moved the district court to compel “Mr. Brown for a second deposition in Dallas, Texas regarding the changes represented in his errata sheet.”
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