On November 5, 2014, the Federal Circuit sat en banc and issued an Order reprimanding a well-known patent appellate attorney for “his misconduct in disseminating an email to clients and prospective clients that he received from then-Chief Judge Rader.” The Order, available here, contains the e-mail at issue, and is worth a read. The Order also references the fact that, in the course of considering the e-mail issue, the Federal Circuit also considered
another matter relating to [the attorney]. This additional matter is separate from and does not directly involve the email matter discussed above. This matter concerns the exchange of items of value between [the attorney] and then-Chief Judge Rader. [The attorney] provided a ticket for one concert, at another concert arranged for upgrading to a standing area near the stage, and arranged for backstage access for then-Chief Judge Rader at both. Then-Chief Judge Rader paid for accommodations. This occurred while [the attorney] had cases pending before this court. We do not decide whether [the attorney’s] actions violated standards of professional responsibility. We have decided to refer this separate matter and the underlying relevant documents to the California bar authorities for their consideration.
The latest copy of the N.D. Tex.’s ECF Administrative Procedures Manual can be found here. The Manual provides instructions for, among other things, (i) filing a civil or miscellaneous case, (ii) signature blocks, (iii) proposed orders, and (iv) emergency filing procedures when ECF is down.
In a thirty page opinion (available here), Judge O’Connor denied Defendants’ motion to transfer venue in the Summit 6 v. Apple case.
I came across the attached decision from the Northern District of Illinois, wherein the Court required a $100 payment for violating the local rules’ courtesy copy requirement. You can find your N.D. Tex.’s judge’s courtesy copy requirements, if any, here.
I came across a second interesting Northern District of Illinois opinion, involving a request for fees and expenses. The court provided the following wisdom, in a case where both sides had requested fees and expenses from one another: “To continue to litigate a matter which is so clearly dead is frustrating to the judicial process. . . . [G]iven the high stakes often involved in patent litigation, parties and their counsel often pull out all of the stops in pursuit of an edge. It’s time for these tactics to stop and for each side to take its ball and go home.” (citations and quotations omitted).
Effective September 2, 2014, the Northern District of Texas’ Local Rules were amended. The latest copy of the rules is located here. I previously discussed the changes to be made to the rules here. The Court also sent an e-mail summarizing the changes (e-mail available here).
On August 22, 2014, Judge Lynn gave a presentation at the Belo regarding practice tips for patent cases. The Northern District of Texas has the 17th busiest docket in the nation, and it has an active criminal docket. Judges Lynn, Godbey and Kinkeade (i.e., the three judges on the patent pilot project) attempt to ensure that criminal cases will not delay patent cases, but this is not always feasible. Judge Lynn is delighted to have patent cases, and is proud to preside over patent cases. If anyone has suggestions about what the Court can do to improve, she’d love to hear them. Here are highlights that I took down from the presentation:
- Too much unnecessary contentiousness in patent cases.
- Too much personal antagonism among lawyers.
- Look at “every single adjective” in your briefs before filing them; adjectives are rarely persuasive.
- If your opposing counsel is misbehaving during a deposition, make sure to videotape it and submit it to the Court. For example, a transcript does not show sarcasm.
- Filing motions that don’t matter. She should not have to be thinking to herself during a hearing, “Why am I here.” This includes construing claim terms. The tendency to fight over everything detracts from the things that really matter.
- Unnecessary requests for page limit extensions. You usually don’t need them, briefs repeat themselves, etc. It’s generally harder to write a short brief but the brief will be more persuasive. If you really need the extra pages, tell the Court why you need them in your motion. You normally will not need the extra pages.
- She would love it if attorneys would agree on the number of claims, terms, and prior art in the case. It’s not reasonably possible to deal with 70 claims. Although Judge Lynn appreciates the legal question of what happens to claims that are dropped pursuant to a court order, the reality is that, if the plaintiff cannot prevail on its best claims, the plaintiff is not likely to win on its worst claims.
- It’s difficult for Judge Lynn when attorneys state that a claim term does not need construction, as it’s difficult for the jury to understand a term that has not been construed. The construction has to be understandable to a jury who likely has an average of a high school education, perhaps 2 years in college. There are rarely any words in a patent’s claim that the jury will understand without explanation.
- Learn how to use the equipment in the Courtroom. An equipment issues arises in almost every trial.
- Have a backup plan if the equipment fails (such as bringing hard copies of your PowerPoint). “It is possible to have a claim construction hearing without a PowerPoint.”
- At trial, Judge Lynn is very concerned about the jury’s time. Jurors are a blessing and a miracle to our system, and she wants to ensure that the jurors are treated well and respectfully. One way to do this is to not waste time. For example, do not run out of witnesses at 3:00 p.m.
- Do whatever can be done to help the jury do its work. For example, the jurors may not remember what early witnesses in the trial look like. The attorneys can take a picture of every witness, and put it in a book; a glossary can be provided to the jurors, as well as a technical tutorial (e.g., an agreed upon tutorial).
- Attorneys are encouraged to agree to let the jurors ask questions. Judge Lynn allows jurors to ask questions, encourages the jurors to write their questions during a break (so that the attorneys won’t know which juror asked the question and start “speaking” to that juror). Upon receipt of a question (unless the question is improper), Judge Lynn calls the attorneys up to the bench, and sees whether they can agree on an answer, work the answer into the examination of the witness, etc.
- Don’t waste space in your briefing. For example, with her, there’s no reason to a have big discussion of Phillips and claim construction principles.
- Ensure that any technical tutorials provided to her will actually work when she opens them up.
- For deposition designations and objections, think about how to make the task easier for her. For example, it’s difficult to look at four different documents when ruling on objections. She does not need full depositions, just the pages that are relevant to the issue she needs to resolve. Mark what’s being offered with one color, and put on the side of the text the objection if the objection is not in the text of the deposition itself. If it’s in the text, highlight that text in a different color.
- Don’t miss deadlines. She notices things that come in late. She does not like to move the trial date, unless it’s necessary on account of the Court’s schedule. If you see a problem looming with respect to a deadline, it’s better to bring it to her attention early on.
- During trial, don’t surprise her. For example, if there is a witness issue (e.g., timing, calling the witness out of order) tell her as soon as possible. Also be prepared to tell her which witnesses you are calling and how long you expect them to testify.
- During a bench conference at trial, be aware that the jury may be able to hear you unless you are whispering. There’s a microphone on the bench that gets activated. Attorneys need to remember to speak into the microphone; otherwise, the court reporter cannot hear what is said.
- Ask to approach; if you are given permission with a witness, you do not have to ask again for that witness.
- Don’t ask the witness to state his or her name, when Judge Lynn has already done so (i.e., in connection with swearing the witness in).
- Sit in on a trial of your judge to see what idiosyncratic things the judge does/wants. You need to know this as it will likely affect your trial presentation. For example, by sitting in one of her trials, you would know that Judge Lynn likes to pre-admit documents, allows note taking by jurors, etc. You also should know the lines of sight of the jurors. Anyone can come into her courtroom, and she likes it when attorneys do, but they rarely do. Take advantage of the opportunity to rehearse and practice.
- Judge Lynn places time limits on patent trials.
- She refers most discovery disputes in her patent cases to the magistrate judges.
- She always tries to take calls that come in during depositions (sometimes, like when she’s in trial, she can’t).
- Typos are her number 1 pet peeve.
- She does not care whether citations are in footnotes or the text of a brief.
- She would certainly entertain an early claim construction of a limited number of terms that are case dispositive.
- She routinely has telephone conferences; may have a telephone conference the day a motion is filed; if you are the responding party to a motion, she does not want you to tell her you haven’t had your three weeks to respond as she wants you to be prepared when she calls. Attorneys can always have court reporters present for any call (e.g., to protect the record).
- A committee is presently looking at whether claim limits/prior art limits should be made a part of the local rules. She would like parties to limit asserted claims prior to claim construction. She will allows parties to add claims later on if there’s good cause to do so.
On August 15, 2014, Judge Lynn issued an Order (available here) in Leak Surveys v. Flir Systems. The Order denied the defendant’s motion to stay litigation pending Inter Partes Review without prejudice to the defendant reasserting the motion if the U.S. Patent and Trademark Office grants inter partes review with respect to any of the patents-in-suit.
On Friday, August 22, 2014, Judge Lynn is hosting a CLE at the Belo (at noon), and presenting her talk titled “Patent Case Preferences and Pet Peeves–What I Know Now as a Judge That I didn’t Know as a Lawyer.”
On July 9, 2014, Judge Godbey issued an order (available here) in Micrografx v. Samsung. The Order granted Samsung’s motion to stay proceedings pending inter partes review of the three patents-in-suit. Judge Godbey stayed the case pending a decision from the U.S. Patent and Trademark Office on the IPR. Notably, the PTO had not yet ruled on the petitions for IPR. Judge Godbey found that the three stay factors—i.e., (i) whether a stay would unduly prejudice the nonmoving party, (ii) whether a stay will simplify the issues and trial, and (iii) whether discovery is complete and whether a trial has been set—each favored granting a stay.
Samsung is represented by Jon Hyland, of Munsch Hardt Kopf & Harr; and Darin Snyder, David Almeling, Luann Simmons, Mark Lian, and Mishima Alam, all of of O’Melveny & Myers.
Micrografx is represented by Stephen Susman, Justin Nelson, Max Tribble, and Terrell Oxford, all of Susman Godfrey.
It has been announced that Judge Cummings intends to take senior status on January 1, 2015. He has served 27 years, having been appointed by President Regan in 1987. The San Agenlo Standard-Times’ article on Judge Cummings’ announcement can be viewed here.