Judge Lynn Invalidates BASCOM’s Patent Under Alice

On May 15, 2015, Judge Lynn issued an extensive Order (available here) finding that BASCOM’s patent asserted against AT&T was invalid for claiming unpatentable subject matter under 35 U.S.C. § 101 and the Supreme Court’s recent Alice opinion (which I discussed here). Accordingly, Judge Lynn granted AT&T’s Rule 12(b)(6) motion to dismiss.

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Recent MTel Decisions

There have recently been three decisions of note in the Mobile Telecommunications v. Blackberry patent infringement case. First, Judge Lynn granted Blackberry’s motion for leave to amend its infringement contentions (decision available here). Second, Judge Lynn issued a sixty-five page claim construction opinion (available here). Third, Magistrate Judge Toliver issued an order (available here) granting in part MTel’s motion to compel. Of note, Judge Toliver determined that MTel was not entitled to obtain certain prior litigation materials, as the patents-in-suit in such earlier litigations “are entirely different from the patents-in-suit [in the instant litigation] and do not concern the same or comparable functionalities as the patents-in-suit.” Judge Toliver also determined that a party need not seek leave of court to depose a corporate deponent under Rule 30(b)(6) for an additional time, so long as the new deposition topics are different from those previously noticed.

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Judge Kinkeade Issues Markman Rulings in Red Dog v. Kat Industries and Richmond v. Forever Gifts

Judge Kinkeade recently issued two substantial opinions construing the claims of the patents-at-issue in Red Dog v. Kat Industries and Richmond v. Forever Gifts. The opinions are available here and here.

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Judge Lynn Resolves Post-Trial Motions in Melchior v. Hilite International

On July 15, 2015, Judge Lynn entered an order (available here) resolving several post-trial motions in the Melchior v. Hilite International case. Judge Lynn ruled, among other things, that there was substantial evidence of infringement, substantial evidence that the claims at issue were not anticipated or obvious, and that the Court would enter judgment awarding damages in the amount of $16,779,864.

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New Patent Infringement Complaints

Here’s a listing of new patent cases filed recently in the Northern District of Texas:

  1. Convergent Media Solutions v. AT&T, Netflix, Roku, and Hulu (complaints available hereherehere, and here)
  2. DBK Holdings v. Tee-Zed Products (complaint available here)
  3. Galderma v. Glenmark Generics (complaint available here)
  4. Goodson v. Titeflex (complaint available here)
  5. Gourley v. The Container Store (complaint available here)
  6. Raniere v. AT&T (complaint available here)
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Rutherford Federal Rules Amendments CLE (Part 3)

This post concludes our discussion of Rebecca Rutherford’s CLE on the amended federal rules, presented on June 2, 2015. Our first post, covering the changes to Rule 26, can be found here. Our second post, addressing the changes to Rule 37, can be found here. This post addresses the remaining amendments.

Briefly, the remaining Rule amendments include:

  • Rule 1 is amended to state that the parties share responsibility to “secure the just, speedy, and inexpensive determination of every action and proceeding.”
  • Rule 4(m) shortens the time to serve the summons from 120 days to 90 days.
  • Rule 16(b)(2) shortens the time for the Court to issue a scheduling order from 90 days to 60 days.
  • Rule 16(b)(3) includes additional suggestions for the Court to include in its scheduling orders: (i) ESI preservation clauses, (ii) FRE 502 clawback provisions, and (iii) meet-and-confer requirements before discovery motions.
  • Rule 55(c) is amended to state that Rule 60(b) may be used against final default judgments.
  • Rule 84 removes all forms from the Rules.

A few thoughts from Ms. Rutherford:

  • Rule 16(b)(2) (shortening time for the Court to issue a scheduling order) has a good-cause exception. Ms. Rutherford suggested that this exception may be easy to satisfy—the committee suggested that “complex issues” or “multiple parties” could justify extending the deadline.
  • The Northern District already requires the parties to meet and confer before filing a discovery motion.
  • Ms. Rutherford said that the amendments also encourage courts and parties to consider having scheduling conferences by telephone or videoconference, with the aim of saving time.
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Judge Lynn Limits Defendant to 30 Prior Art References

In Mobile Telecommunications Technologies v. Blackberry, Judge Lynn entered an Order (available here) limiting the defendant to 30 prior art references in its opening expert report. The Order was without prejudice to defendant seeking leave to assert more than 30 references upon a showing of good cause.

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Judge Kinkeade Invalidates Patent On Motion to Dismiss Under Alice

On May 7, 2015, Judge Kinkeade entered an Order (available here) in Jericho Systems v. Axiomatics finding that the plaintiff’s complaint should be dismissed at the pleadings stage because the patent in suit did not claim patent eligible subject matter under 35 U.S.C. § 101 and the Supreme Court’s recent Alice decision.

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Judge Godbey Denies Motion to Stay Patent Case Pending Inter Partes Review

On June 17, 2015, Judge Godbey issued an Order (available here) in Lakesouth v. Ace Evert. The Order denied the defendants’ motion to stay pending inter partes review. Judge Godbey found the fact that the patent in suit already went through an eight year reexamination to weigh against a stay, as did the nearly one year delay in requesting IPR, that one of the defendants was not a party to the IPR, and that trial will be set for January 2016.

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Judge Means Rules That Allcare Owes Highmark Over $5 Million For Losing Patent Infringement Case

On June 23, 2015, following a trip up to the Supreme Court, Judge Means ordered patent holder Allcare to pay accused infringer Highmark over $5 million (decision available here). Judge Means concluded that the case was “exceptional” under 35 U.S.C. § 285, thereby justifying an award of attorney’s fees. As a basis for the decision, Judge Means wrote:

The factual findings supporting the Court’s observation, which were not disturbed on appeal, are more than sufficient to support an exceptional-case finding under the standard announced in Octane. In particular, the Court found that Allcare: (1) failed to perform an adequate pre-filing investigation into its infringement claims, (2) ignored information it learned pre-filing about Highmark’s system that cast doubt on Allcare’s claims of infringement, (3) maintained its infringement claims well after such claims had been shown by its own experts to be without merit and for the express purpose of maintaining leverage against Highmark, (4) used a phony informational survey to identify Highmark and other companies as targets from which licensing fees could be demanded and litigation threatened, (5) asserted meritless defenses of res judicata and collateral estoppel that its attorneys knew to be frivolous, (6) shifted its claim construction without leave of Court and after the deadline set out in this Court’s scheduling order, and (7) made misrepresentations to the Western District of Pennsylvania in connection with the transfer of the case to this Court. 

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