In Re Cray—Another Blow To East Texas’ Patent Docket: Employees Working From Home Are Generally Not Enough To Confer Venue Upon A District In Patent Cases

On September 21, 2017, the Federal Circuit issued its decision in In re Cray Inc. (available here). As I noted in an earlier post, after the Supreme Court’s TC Heartland decision, the only proper venue for a patent-infringement case against a domestic defendant is (i) where the defendant resides (which, per the Supreme Court, is the defendant’s state of incorporation), or (ii) where the defendant both (a) has a regular and established place of business and (b) has committed acts of infringement. See 28 U. S. C. § 1400(b).

Because there is no dispute about where a defendant’s state of incorporation is, the real focus is on where a defendant has “a regular and established place of business.” In In re Cray, East Texas’ Judge Gilstrap had taken an expansive view of the phrase “a regular and established place of business,” finding that an employee who worked from home in East Texas constituted “a regular and established place of business” of the defendant. In In re Cray, the Federal Circuit reversed, finding that the district court had abused its discretion and ordered the district court to grant the motion to dismiss and transfer the case to an appropriate venue.

The Federal Circuit first articulated the relevant venue test with respect to “a regular and established place of business”:

[There are] three general requirements relevant to the inquiry: (1) there must be a physical place in the district; (2) it must be a regular and established place of business; and (3) it must be the place of the defendant. If any statutory requirement is not satisfied, venue is improper under § 1400(b).

The district court’s opinion had set forth “four factors” to consider in the inquiry—i.e., (i) physical presence, defendant’s representations, benefits received, and targeted interactions with the district. The Federal Circuit found that “[t]he district court’s four-factor test is not sufficiently tethered to this statutory language and thus it fails to inform each of the necessary requirements of the statute.”

Instead, per the Federal Circuit:

  • “The regular and established place of business standard requires more than the minimum contacts necessary for establishing personal jurisdiction or for satisfying the doing business standard of the general venue provision.”
  • “When determining venue, the first requirement is that there must be a physical place in the district. The district court erred as a matter of law in holding that a fixed physical location in the district is not a prerequisite to proper venue. This interpretation impermissibly expands the statute. The statute requires a ‘place,’ i.e., ‘[a] building or a part of a building set apart for any purpose’ or ‘quarters of any kind’ from which business is conducted. The statute thus cannot be read to refer merely to a virtual space or to electronic communications from one person to another. . . . While the ‘place’ need not be a ‘fixed physical presence in the sense of a formal office or store,’ there must still be a physical, geographical location in the district from which the business of the defendant is carried out.”
  • “The second requirement for determining venue is that the place ‘must be a regular and established place of business.’ The district court’s test fails to recognize that the place of business must be ‘regular.’ A business may be ‘regular,’ for example, if it operates in a ‘steady[,] uniform[,] orderly[, and] methodical’ manner.”
  • “[W]hile a business can certainly move its location, it must for a meaningful time period be stable, established. On the other hand, if an employee can move his or her home out of the district at his or her own instigation, without the approval of the defendant, that would cut against the employee’s home being considered a place of business of the defendant.”
  • “[T]he third requirement when determining venue is that ‘the regular and established place of business’ must be ‘the place of the defendant.’ As the statute indicates, it must be a place of the defendant, not solely a place of the defendant’s employee. Employees change jobs. Thus, the defendant must establish or ratify the place of business. It is not enough that the employee does so on his or her own. Relevant considerations include whether the defendant owns or leases the place, or exercises other attributes of possession or control over the place. One can also recognize that a small business might operate from a home; if that is a place of business of the defendant, that can be a place of business satisfying the requirement of the statute. Another consideration might be whether the defendant conditioned employment on an employee’s continued residence in the district or the storing of materials at a place in the district so that they can be distributed or sold from that place. Marketing or advertisements also may be relevant, but only to the extent they indicate that the defendant itself holds out a place for its business.”
  • “The district court is correct that a defendant’s representations that it has a place of business in the district are relevant to the inquiry. Potentially relevant inquiries include whether the defendant lists the alleged place of business on a website, or in a telephone or other directory; or places its name on a sign associated with or on the building itself. But the mere fact that a defendant has advertised that it has a place of business or has even set up an office is not sufficient; the defendant must actually engage in business from that location.”
  • “In the final analysis, the court must identify a physical place, of business, of the defendant. A further consideration for this requirement might be the nature and activity of the alleged place of business of the defendant in the district in comparison with that of other places of business of the defendant in other venues. Such a comparison might reveal that the alleged place of business is not really a place of business at all.”

(citations and quotations omitted).

In the instant case, the Federal Circuit found that the district court erred in finding that an employee’s home, located in East Texas, constituted “a regular and established place of business” of the defendant:

The fact that Cray allowed its employees to work from the Eastern District of Texas is insufficient. There is no indication that Cray owns, leases, or rents any portion of Mr. Harless’s home in the Eastern District of Texas. No evidence indicates that Cray played a part in selecting the place’s location, stored inventory or conducted demonstrations there, or conditioned Mr. Harless or Mr. Testa’s employment or support on the maintenance of an Eastern District of Texas location. No evidence shows that Cray believed a location within the Eastern District of Texas to be important to the business performed, or that it had any intention to maintain some place of business in that district in the event Mr. Harless or Mr. Testa decided to terminate their residences as a place where they conducted business. . . .

The statute clearly requires that venue be laid where ‘the defendant has a regular and established place of business,’ not where the defendant’s employee owns a home in which he carries on some of the work that he does for the defendant.

(citations and quotations omitted).

The Federal Circuit did note, however, that a defendant may have a business model “whereby many employees’ homes are used by the business as a place of business of the defendant.” But, in the run-of-the-mill situation where a one-off employee is working from home for the employee’s convenience, that is clearly not sufficient to constitute “a regular and established place of business” for venue purposes under In re Cray.

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Judge Kinkeade Awards Attorney’s Fees To SAP In Patent Case Brought By Investpic, Finding Case Exceptional In SAP’s Favor

On September 7, 2017, Judge Kinkeade issued an Order (available here) in SAP America v. Investpic. The Order granted SAP’s Motion to Find Case Exceptional and Award Fees. Under the Patent Act, the Court may award attorney’s fees to the prevailing party in exceptional cases. 35 U.S.C. § 285. “A case is exceptional if it stands out from other cases with respect to the substantive strength of a party’s litigating position considering both the governing law and the facts of the case or if the case stands out in the unreasonable manner in which the case was litigated.”

In the instant case, Judge Kinkeade found that the case was exceptional considering both Investpic’s litigation position and the manner in which Investpic litigated the case. As to Investpic’s litigation position:

[T]his case does stand out from the typical case in which claims of a patent were invalidated by a court. That is because Investpic was specifically warned by the USPTO, in an opinion issued in connection with a post grant review, that it looked very unlikely that these claims were directed toward patentable subject matter and very likely that the claims were invalid. The USPTO did not directly address this subject matter eligibility issue in that opinion because doing so would have been outside the authority of the USPTO for that particular proceeding. Instead the USPTO specifically invited Investpic to address this issue in another post grant review proceeding of the patent being conducted by the USPTO in which there was authority for the subject matter eligibility issue to be addressed. Instead of addressing this issue, after the USPTO created a serious cloud on the of the claims, Investpic ignored it and continued to assert its patent against companies like SAP. Which, eventually lead to the current lawsuit in which SAP sought and received a declaration that the claims of the asserted patent are invalid because they did not address patentable subject matter.

The Court also found that the case was exceptional with respect to the manner in which Investpic litigated–i.e., that it was not proper for Investpic’s owners to contact SAP’s sales people and pretend to be interested in purchasing SAP’s product to gather information thought to be useful in the lawsuit:

The Court also agrees that this case is exceptional in regards to the manner in which Investpic litigated this matter. While this litigation was on going, Mr. Lee Miller and Dr. Samir Varma, who are both owners of Investpic, reached out to SAP sales people and pretended to be potential purchasers of SAP’s product that is in contention in this matter. This was done under the guise of another company, Regulus International Capital Corp. (“Regulus”) which was operated by Mr. Miller. These two engaged in email and phone meetings with SAP’s sales people in which they inquired about SAP’s product. Those inquires directly related to the infringement contentions at issue in this matter. At the same time, Mr. Miller and Mr. Varma held themselves out to be only employees of Regulus and failed to disclose their relationship with Investpic and their interest in the outcome of this lawsuit. This interaction and pretense continued for at least three months in which Mr. Miller and Mr. Varma continued to gather infringement information about SAP’s product for the purpose of using this information in this litigation.

SAP’s counsel not aware of that this was going on until they were informed about this by Investpic’s counsel. In this conversation, Investpic’s counsel informed SAP’s counsel of the interactions between Invetpic’s owners and SAP sales representatives. Investpic’s counsel also asserted that Investpic intended to use the information in Investpic’s motion practice in this case. SAP argues that this amounts to an unreasonable manner of litigating this case, which makes the case exceptional. Investpic argues that this behavior does not make the case exceptional.

The Court is not persuaded by Investpic’s arguments that this behavior does not make this case exceptional. Investpic first appears to argue that the because of the ongoing litigation, SAP sales people should have been aware of Mr. Miller’s and Mr. Varma’s connection to and interest in this case. But, as pointed out by Investpic in other argument, the people being contacted at SAP were sales people. They were not people at SAP that would be expected to understand the details and nature of this case or of the patent asserted in this case. On the other hand, Mr. Miller and Mr. Varma, clearly knew about these issues and details because their inquiries were directed related to the infringement contentions that Investpic asserted in this case. They also clearly knew about these details and issues because of their connection to Investpic. They are both owners of Investpic; Mr. Miller is the operating manager of Investpic; and Dr. Varma is the inventor listed on the patent in suit in this matter. . . .

Considering the totality of the circumstances, the Court finds that the manner in which Investpic litigated this case and in particular the manner in which Mr. Miller and Mr. Varma conducted self help discovery under a pretense is sufficient to support a finding that this case is exceptional.

Of note, the Court declined to impose the attorney’s fees on Investpic’s principals:

SAP argues that the Court should not only hold Investpic liable for attorney’s fees but should also join Mr. Miller, Mr. Varma, and Regulus in this matter and hold each of these liable for attorney’s fees also. SAP argues that 35 U.S.C § 285 does not limit a court to awarding attorney fees against parties to the litigation but that a court may award those fees against any person or entity that caused the case to be exceptional. According to SAP this means that Mr. Miller, Mr. Varma, and Regulus should all be made parties and the Court should award attorney fees against these two people and the entity jointly with Investpic.

The Court denies SAP’s request to join Mr. Miller, Mr. Varma, and Regulus in this matter to hold each individually liable for attorney fees in this matter. While the Court agrees with SAP that 35 U.S.C. § 285 does not limit the award of attorney fees against parties and that the Court may join these additional people and the entity for the purposes of determining fee liability, the Court declines to do so. The Court believes that, considering Mr. Miller’s and Mr. Varma’s interest in Investpic, an award of attorney’s fees against Investpic alone is sufficient.

The Court concluded by allowing SAP to file a motion for recovery of its attorney’s fees within 14 days.

SAP noted in its motion that it had incurred about $540,000 in litigating the case—a case resolved within about seven months after the case was filed via a motion for judgment on the pleadings filed about five months after SAP answered. This is one reason (i.e., the significant attorney’s fees in patent-infringement litigation) why they say patent litigation is the sport of kings. It will be interesting to see how much Judge Kinkeade ultimately awards.

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Judge Kinkeade Denies Special Master Costs in SAP v. InvestPic

On September 11, 2017, Judge Kinkeade entered an Order in SAP v. InvestPic (available here). The Order denied SAP’s request to include in the Court’s award of costs the costs incurred by SAP related to the appointment of the case’s Special Master.

The Court denied the request because the recovery of special master costs is not authorized by statute, rule, or otherwise:

A court may only award costs of court expressly set out in 28 U.S.C. §§ 1821 and 1920. These sections do not authorize taxation of Special Master fees as costs.

Additionally, the agreed order appointing the Special Master in the case does not state anything regarding whether the Special Master’s fees will ultimately be taxed as costs against a losing party.

There’s a good lesson here—if you want a special master’s costs to be taxed in favor of the prevailing party, make sure that the court’s order appointing the special master explicitly so provides.

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Judge Kinkeade Denies Motion to Stay Pending IPR Review

On September 11, 2017, Judge Kinkeade denied (in an electronic order available here) a motion to stay pending inter partes review. Judge Kinkeade found that the “reasons supporting a stay of this case are speculative and that [the moving party] has not shown that a stay will increase judicial economy.” Despite the relatively brief order, one can’t help but wonder whether it was motivated by the Supreme Court’s decision to grant certiorari in the Oil States case—a case where the Supreme Court will determine whether the inter partes review process for challenging patents is constitutional.

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Impression Products v. Lexmark: Supreme Court (Again) Cuts Back Patent Rights

On May 30, 2017, the Supreme Court issued its decision in Impression Products v. Lexmark (available here). The Court decided two issues. First, if a patentee sells an item under an express restriction on the purchaser’s right to reuse or resell the product, the patentee cannot enforce that restriction through an infringement lawsuit. Second, a patentee exhausts its patent rights by selling its products outside of the United States, where American patent laws do not apply. The Court concluded that “a patentee’s decision to sell a product exhausts all of its patent rights in that item, regardless of any restrictions the patentee purports to impose or the location of the sale.”

In the case, Lexmark sold its toner cartridges for “full price” (which allowed the purchaser to do as it wished with the cartridges) and at 20% off through Lexmark’s “Return Program” (which required the purchaser to refrain from transferring the empty cartridge to anyone but Lexmark). To enforce this restriction, Lexmark installed a microchip on each Return Program cartridge that prevents reuse once the toner in the cartridge runs out.

Toner remanufacturers acquired Return Program cartridges and figured out a way around the microchips. The remanufacturers then sold the used cartridges to purchasers. Lexmark’s contracts, of course, were not with the remanufacturers, but with the original purchasers.

Lexmark sued remanufacturer Impression Products for patent infringement with respect to two groups of cartridges – one group concerning Return Program cartridges sold by Lexmark within the United States, and the second group concerned Return Cartridges that Lexmark sold overseas (and that Impression subsequently imported into the United States). Impression asserted exhaustion as a defense—according to Impression, Lexmark’s sales inside and outside of the United States exhausted Lexmark’s patent rights in the cartridges, so Impression could refurbish, resell and import them.

The Federal Circuit, sitting en banc, ruled for Lexmark with respect to both groups of products. The Supreme Court reversed, ruling against Lexmark with respect to both groups.

With respect to the United States cartridges, “The single-use/no-resale restrictions in Lexmark’s contracts with customers may have been clear and enforceable under contract law, but they do not entitle Lexmark to retain patent rights in an item that it has elected to sell.” “Once sold, the Return Program cartridges passed outside of the patent monopoly, and whatever rights Lexmark retained are a matter of the contracts with its purchasers, not the patent law.”

The Court noted that patentees may still impose restriction on licensees:

A patentee can impose restrictions on licensees because a license does not implicate the same concerns about restraints on alienation as a sale. Patent exhaustion reflects the principle that, when an item passes into commerce, it should not be shaded by a legal cloud on title as it moves through the marketplace. But a license is not about passing title to a product, it is about changing the contours of the patentee’s monopoly: The patentee agrees not to exclude a licensee from making or selling the patented invention, expanding the club of authorized producers and sellers. Because the patentee is exchanging rights, not goods, it is free to relinquish only a portion of its bundle of patent protections.

In the end, “[o]nce a patentee decides to sell—whether on its own or through a licensee—that sale exhausts its patent rights, regardless of any post-sale restrictions the patentee purports to impose, either directly or through a license.”

With respect to the second question – overseas sales – the Court found that “[a]n authorized sale outside the United States, just as one within the United States, exhausts all rights under the Patent Act.”

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Former Magistrate Judge Kaplan Issues Order On Privilege Dispute In Nerium Case

On September 5, 2017, former Magistrate Judge Kaplan, acting as special master in Nerium Skincare v. Nerium Biotechnology, issued Special Master Order No. 13 (available here) dealing with a privilege objection concerning plaintiffs’ communications with a public relations firm. In support of their objection, plaintiffs submitted a privilege log identifying eight e-mails withheld from production, an affidavit, and about 1,400 pages of documents to Judge Kaplan for his in camera review.

Judge Kaplan noted, among other things, that the party asserting privilege must provide “a detailed description of the materials in dispute and state specific and precise reasons for their claim of protection from disclosure.” In camera inspection “is appropriate only after the burdened party has submitted detailed affidavits and other evidence to the extent possible.” (emphasis in original).

Judge Kaplan concluded that plaintiffs failed to adduce sufficient evidence to establish that the relevant communications were protected by the attorney-client privilege:

Other than a privilege log and the documents themselves, the only evidence submitted by Plaintiffs is the affidavit of one of its lawyers, Alexander Toney, who states: “My communications with Levick Strategic Communications, LLC have been for the purpose of gathering evidence from the Internet for use in briefing and giving legal advice to the client. These communications were and remain confidential. I have directed Levick not to perform any public relations work.”

As an initial matter, the Special Master observes that Toney addresses only his communications with Levick. Most of the emails withheld from production are neither to nor from Toney. More importantly, the Toney affidavit fails to show how each document, or category of documents, falls within the scope of the attorney-client privilege.

Notwithstanding this failure of proof, the Special Master has reviewed a sampling of the 1,386 pages of documents submitted by Plaintiffs in an attempt to glean information that might shed additional light on the privilege issue. Some of the documents and attachments, such as court filings and public relations materials, clearly are not privileged. However, in most instances, the Special Master has been left to speculation and guess-work in interpreting the documents. Without evidence explaining these documents and the information contained therein, Plaintiffs cannot establish their claim of privilege.

As such, Judge Kaplan ordered the production of the requested documents.

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Judge Boyle Transfers Trademark Infringement Case Where Personal Jurisdiction Found Lacking And Denies Jurisdictional Discovery

On July 14, 2017, Judge Boyle issued an Order (available here) in Springboards to Education v. Hamilton County transferring the case out of the Northern District of Texas due to lack of personal jurisdiction. The case involved allegations of trademark infringement. Plaintiff argued that defendant (a county in Tennessee) was subject to specific personal jurisdiction in the Northern District on account of its website—i.e., that defendant “transacts a sufficient amount of business in Texas through[] the use of its interactive website and promotional materials.” Judge Boyle rejected this argument: “That argument fails because Plaintiff has not alleged that a single disinterested Texas resident used Defendant’s website at all, let alone purchased an infringing product through it.”

In rejecting the argument, Judge Boyle set forth the test applied by the Fifth Circuit for personal jurisdiction vis-à-vis websites (based on the famed Zippo case), as follows:

The Fifth Circuit has adopted what is known as the Zippo sliding scale test for determining whether internet-based contacts establish personal jurisdiction over a nonresident defendant. The aim of the Zippo test is to measure an internet site’s connection to a forum state, using a three-point spectrum of connectivity: low, medium, or high. On the low end where a website is nothing more than a passive advertisement, the court must decline to exercise personal jurisdiction. Conversely, on the high end where a website facilitates contractual relationship and the knowing and repeated transmission of computer files on the Internet, personal jurisdiction is proper. And in the middle where a website falls somewhere in between, the exercise of jurisdiction is determined by the level of interactivity and commercial nature of the exchange of information that occurs on the website.

(citations and quotations omitted).

Judge Boyle determined that defendant’s website fell in the middle of the Zippo spectrum, as the website states that any individual, no matter his or her place of residence, may register for the relevant event, donate books and to make monetary donations. The website also had a link to download the relevant app from the Apple App Store or the Android App on Google Play. But the website mainly provides contact information and volunteer resources; it does not allow the ordering of goods or services, one to enroll in memberships, or otherwise interact with defendant’s staff members. As such, the Court found that, while the website is more than a passive advertisement, it is not a “virtual store” facilitating contractual relationships.

Ultimately, the Court found that, “[t]ogether, Plaintiff’s allegations—that Defendant has national partnerships, allows people to register for a reading pledge, takes donations, and offers apps for download—fail to meet the minimum threshold for specific jurisdiction. Under Zippo, personal jurisdiction is based on actual internet sales to forum residents, not the mere possibility of sales. Plaintiff fails to allege, let alone offer prima facie proof, that a single disinterested Texas resident purchased an infringing product on Defendant’s website or, for that matter, accessed the website at all.” (quotations omitted; emphasis in original).

Judge Boyle also denied the plaintiff jurisdictional discovery. “When seeking jurisdictional discovery, a plaintiff must make a preliminary showing of jurisdiction.” (quotations omitted). Because “Plaintiff has not pled, let alone with particularity, any sales to, donations by, downloads by, or website access by Texas residents” but only “described a largely, if not entirely, non-commercial website with no tie to Texas residents other than being accessible on the web—in short, a site of the variety insufficient to confer personal jurisdiction under Zippo”, the plaintiff had not made a preliminary showing of jurisdiction and jurisdictional discovery was unwarranted.

Because the Court, when it finds lack of personal jurisdiction, may either dismiss the lawsuit or transfer it to a district in which it could have been brought, and courts generally prefer transfer to dismissal, the Court decided to transfer the case to Tennessee, where defendant is based.

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Karen Gren Scholer and Matthew Kacsmaryk Nominated To Serve On N.D. Tex. Bench

Three days ago, the White House announced that Karen Gren Scholer and Matthew Kacsmaryk have been nominated to serve as Northern District of Texas judges. Ms. Scholer had previously been nominated by President Obama to a judgeship in the Eastern District of Texas. As I understand it, Mr. Kacsmaryk would fill the Amarillo judgeship vacancy.

According to the White House:

  • “If confirmed, Karen Gren Scholer of Texas will serve as a District Judge on the U.S. District Court for the Northern District of Texas. Karen Scholer is a principal and serves as the co-managing partner in the Dallas law firm of Carter Scholer PLLC, where her practice focuses on complex business, tort, and other civil litigation in State and Federal courts. Before joining the firm, she was a partner at the law firm of Jones Day. In 2000, she was elected, and in 2004 reelected, by the people of Texas to serve for eight years as a State District Judge in Dallas County, where she presided over thousands of cases, including more than 100 cases tried to jury verdict. In 2007, she also served as the Presiding Judge for the Dallas County Civil District Judges. Ms. Scholer has been identified as one of the Top 50 Women Lawyers in Texas by Thomson Reuters’ Super Lawyers, and she has received awards for professional excellence from a number of Asian-American community and service organizations. Ms. Scholer earned her B.A. from Rice University and her J.D. from Cornell University Law School.”
  • “If confirmed, Matthew J. Kacsmaryk of Texas will serve as a District Judge on the U.S. District Court for the Northern District of Texas. Matthew Kacsmaryk is Deputy General Counsel to First Liberty Institute, where his practice focuses on religious liberty litigation in federal courts and amicus briefs in the U.S. Supreme Court. From 2008 through 2013, he served as an Assistant United States Attorney in the Northern District of Texas, where he was lead counsel in over 75 criminal appeals and co-counsel in high-profile criminal and terrorism trials. In 2013, Mr. Kacsmaryk received the Attorney General’s Award for Excellence in Furthering the Interests of U.S. National Security for his work in United States v. Aldawsari. From 2003 to 2008, he was an associate in the Dallas office of Baker Botts LLP, where he focused on commercial, constitutional, and intellectual property litigation. In 2005, he received the firm’s Opus Justitiae Award for Outstanding Commitment to Pro Bono Work. He earned his J.D. with honors from the University of Texas School of Law in 2003 and his B.A., summa cum laude, from Abilene Christian University in 1999.”

Congratulations to Ms. Scholer and Mr. Kacsmaryk on their respective nominations!

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Judge Fitzwater Dissolves TRO, Clearing Way for City of Dallas to Remove Robert E. Lee Statue In Dallas’ Lee Park

On September 7, 2017, Judge Fitzwater dissolved the TRO he had previously entered restraining the City of Dallas from removing a statue of Robert E. Lee in Dallas’ Lee Park. This new ruling (available here) clears the way for Dallas to continue the process it had begun to remove the Lee statute from the park.

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Judge Kinkeade Orders Parties To Meet And Confer To Narrow Disputed Patent Claim Terms Down From 19, Suggests 8 Or Fewer Is Appropriate Amount

On July 20, 2017, Judge Kinkeade entered an Order (available here) in Berman v. DirectTV. In the case, the parties had submitted 19 disputed claim terms/phrases to the Court for construction. Upon review of the parties’ briefing, Judge Kinkeade determined that this number could be reduced. Accordingly, the Court required the parties to meet and confer to narrow the number of disputed claim terms or phrases. The Court further suggested that 8 or fewer terms/phrases would be a more reasonable number for a jury to comprehend and resolve. Judge Kinkeade ordered the parties to, within 14 days, file a revised joint claim construction chart.

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