Judge Lynn Denies Motion to Stay Pending Inter Partes Review

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.

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Judge Lynn to Speak at Belo on August 22, 2014 Regarding “Dos and Don’ts” of Patent Cases

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.”

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Judge Godbey Grants Stay Pending Inter Partes Review of Patents-In-Suit

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 SnyderDavid AlmelingLuann SimmonsMark 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.


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Judge Cummings to Take Senior Status

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.

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Judge Kinkeade Issues Markman Opinion in Geotag Case

On June 10, 2014, Judge Kinkeade issued an exhaustive, 62 page Markman opinion in the Geotag v. AT&T case, construing the disputed claim terms of the patent-in-suit. The opinion is available here.

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New IP Cases Filed In the Northern District of Texas

Over the last several weeks, a number of new intellectual property cases have been filed in the Northern District of Texas, including:

Zenimax Media v. Oculus VR: Zenimax’s complaint (available here) asserts that Oculus wrongfully took Zenimax’s intellectual property and commercially exploited such IP for Oculus’ own gain. Zenimax asserts claims for misappropriation of trade secrets, copyright infringement, breach of contract, unfair competition, unjust enrichment, trademark infringement, and false designation of origin.

Advanced Marketing Systems v. The Kroger Co.: AMS’ complaint (available here) alleges that Kroger infringes the patents-in-suit through Kroger’s website’s use of loyalty cards.

Novaerus Group v. Airmanager Technologies: Novaerus alleges (in its complaint available here) that Airmanager infringes U.S. Patent No. 8,211,374 through the sale of Airmanager’s air cleaning products.

Best Little Promohouse in Texas v. Yankee Pennysaver: the plaintiff asserts that defendants infringe plaintiff’s trademarks (complaint available here).

Corning Optical Communications v. Communications System: Corning claims that Communications Systems infringes U.S. Patent No. 6,500,020, entitled “Top Loading Customer Bridge” through the sale of its VDSL2 NID Splitter Module. (Complaint available here).

Dehn’s Innovations v. Cleanblastor: Dehn’s Complaint (available here) asserts that Cleanblastor has committed patent and trademark infringement through the sale of certain cleaning tools and products.

DietGoal v. Taco John’s International: DietGoal’s complaint (available here) claims that Taco John’s breached a settlement agreement with DietGoal after Taco John’s accepted a mediator’s proposal to settle all issues in a pending case but thereafter Taco John’s refused to pay the agreed-upon settlement amount.

Energy Intelligence v. HollyFrontier Corp.: Energy Intelligence’s complaint (available here) asserts that HollyFrontier infringed Energy Intelligence’s copyrights by improperly forwarding copies of Oil Daily to others.

Flexible Innovations v. K Design Marketing: Flexible Innovations asserts in its complaint (available here) that K Design has committed trademark infringement, false designation of origin, and unfair competition through the sale of certain cleaning products.

LakeSouth v. Wal-Mart: LakeSouth filed a patent infringement lawsuit (complaint available here) asserting that Wal-Mart infringes U.S. Patent No. 6,612,713 through the sale of solar powered umbrellas, and U.S. Patent Nos. 6,901,882 and 7,017,521 through the sale of certain bird feeders.

LakeSouth v. Evergreen: LakeSouth’s patent infringement lawsuit (complaint available here) asserts that Evergreen infringes U.S. Patent Nos. 6,901,882 and 7,017,521 through the sale of certain bird feeders.

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Are Magistrate Judges’ Orders on Claim Construction Reviewed De Novo By the District Court Judge?

I came across Judge Schneider’s decision in the East Texas Adaptix cases a couple of days ago (decision available here). The decision is notable for, among other things, the following analysis regarding what standard is applied when a district court judge reviews a magistrate judge’s claim construction ruling:

Defendants assert that the district court must review de novo the magistrate judge’s claim construction order. But the Court’s local rules establish a clearly erroneous standard when reviewing a magistrate’s judge order on non-dispositive matters. Local Rule CV-72(b).

Claim construction is a non-dispositive, pretrial issue that can be referred to a magistrate judge under 28 U.S.C. § 636(b)(1)(A). SciCo Tec GmbH v. Boston Scientific Corp., 599 F. Supp. 2d 741, 742 (E.D. Tex. 2009). In some circumstances, out of an abundance of caution, the magistrate judge may choose to issue a report and recommendation (under 28 U.S.C. § 636(b)(1)(B)) rather than an order on claim construction (under 28 U.S.C. § 636(b)(1)(A)). See, e.g., Innova Patent Licensing, LLC v. Alcatel-Lucent Holdings, No. 2:10cv251, 2012 WL 2958231, at *1 (E.D. Tex. July 19, 2012). The district judge reviews a report and recommendation under the more demanding de novo standard. Local Rule CV-72(c); Innova Patent Licensing, 2012 WL 2958231, at *1.

But in this case, the magistrate judge issued an order on the non-dispositive issue of claim construction, not a report and recommendation. Accordingly, the clearly erroneous standard applies. Yet, the Court acknowledges that its order will be held to the de novo standard by the appellate court. Thus, the Court determines that even under the more burdensome de novo standard of review, the Court would still agree with and uphold the constructions of the magistrate judge.

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Judge Godbey Grants Motion To Stay Pending Inter Partes Review

On May 27, 2014, Judge Godbey granted defendant’s motion to stay pending inter partes review of the patent-in-suit in Employment Law Compliance v. Compli (decision available here). The patent-in-suit had previously been the subject of a petition for ex parte reexamination, which was granted in May 2014. The defendant in the instant suit filed a request for inter partes reexamination in April 2014. The PTO had not yet ruled on this petition.

Judge Godbey ultimately decided to grant the motion to stay. The Court found that a stay would not unduly prejudice the plaintiff, a stay would simplify the issues in the case, and that the case was in in the early stages of litigation.

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Judge Kinkeade Grants Transfer Motion In Patent Infringement Case

On May 15, 2014, Judge Kinkeade entered an Order (available here) that granted the defendant’s motion to change venue in Eight One Two v. Purdue Pharma.

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Supreme Court Reverses Federal Circuit’s Inducement Ruling in Akamai

On June 2, 2014, the Supreme Court issued its unanimous opinion in Limelight Networks v. Akamai (available here). The Supreme Court held that a defendant cannot be held liable for inducing infringement of a patent under 35 U. S. C. § 271(b) when “no one has directly infringed the patent under § 271(a) or any other statutory provision.” The Supreme Court reasoned that, “in this case, performance of all the claimed steps cannot be attributed to a single person, so direct infringement never occurred” and faulted the Federal Circuit for “adopt[ing] the view that Limelight induced infringement on the theory that the steps that Limelight and its customers perform would infringe the ’703 patent if all the steps were performed by the same person.” Because there was no direct infringement, “Limelight cannot be liable for inducing infringement that never came to pass.” The practical effect of this reversal is that it makes it harder to establish liability for induced infringement.

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