President Obama Nominates Sarah Saldana to Become the Next United States Attorney for the Northern District of Texas

Posted on June 30, 2011 by Steven Callahan

It was announced yesterday that President Obama has nominated Sara Saldana to become the next United States Attorney for the Northern District of Texas.  Ms. Saldana presently heads the public corruption unit of the United States Attorney’s Office of the Northern District of Texas, and has served as an Assistant United States Attorney in the Northern District of Texas since 2004.  Ms. Saldana’s nomination now must be confirmed by the Senate.  News articles on the nomination can be found here and here.

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Judge O’Connor Issues Important Patent Opinion in Lighting Ballast Control

Posted on June 24, 2011 by Steven Callahan

On June 10, 2011, Judge O’Connor issued an opinion in Lighting Ballast Control v. Philips Electronics North America Corp. et al. (copy of opinion located here).  Judge O’Connor struck the plaintiff’s damages expert’s opinion that used the entire market value theory to confirm the reasonableness of his proposed royalty rate.  Judge O’Connor found that the expert “[was] clearly checking or analyzing his royalty rate in light of [the defendant’s] total sales of the accused products, without any evidence that the [patent-in-suit] drives or forms the basis for sales of the accused products.”  According to Judge O’Connor, the use of the entire market value theory was improper under Federal Circuit authority where the expert failed to present evidence that the patented technology drove sales of the accused products.

Judge O’Connor also prohibited the plaintiff’s damages expert from relying on a settlement agreement between the plaintiff and a former defendant in the case, as such reliance was not reliable under Daubert in light of the relevant facts the case.

As patent practitioners know, the state of patent damages law is currently in flux.  Judge O’Connor’s opinion in Lighting Ballast Control should be considered when formulating damages theories in patent infringement cases.

Judge O’Connor’s opinion is also notable because it rejected the defendant’s attempt to preclude the plaintiff from referring to the statutory presumption of validity before the jury.

Lighting Ballast Control is represented by Jonathan Suder and David Skeels, both of Friedman Suder & Cooke PC.

Universal Lighting Technologies, Inc. is represented by Deborah Sterling and Brenda Cubbage, both of Spencer, Crain, Cubbage, Healy, & McNamara; and Diana Szego, John Inge, Sten Jensen, Steven Routh, and Vann Pearce, all of Orrick Herrington & Sutcliffe LLP.

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Judge Solis Upholds the Constitutionality of the False Marking Statute

Posted on June 24, 2011 by Steven Callahan

On June 20, 2011, Judge Solis of the Northern District of Texas, in United States ex rel. Vandever v. Intermatic Manufacturing, upheld the constitutionality of the false marking statute, 35 U.S.C. § 292, which prohibits, among other things, the false marking of products with patent numbers, if done with the intent to deceive the public.  A copy of the decision is available here.

Judge Solis upheld the constitutionality of the qui tam provision of the false marking statute, 35 U.S.C. § 292(b), which allows any person to file a lawsuit on behalf of the United States, against a “take Care” challenge under Article II of the United States Constitution.  Judge Solis found that the qui tam provision did not offend the “take Care” clause of the Constitution because the United States retains “the control necessary to hold the civil statute constitutional.”

 

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Northern District of Texas Adds New Attorney Status Report Feature

Posted on June 24, 2011 by Steven Callahan

The Northern District of Texas recently added a new feature to its website:  Attorney Status Report.  The feature allows one to search to determine whether a particular attorney is admitted to the Northern District of Texas, and shows the attorney’s bar number, bar status, date admitted, address, and whether the attorney is an ECF filer.  The Attorney Status Report feature is available here.

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Glycobiosciences Sues MPM Medical in the Northern District of Texas for Patent Infringement

Posted on June 24, 2011 by Steven Callahan

On June 23, 2011, Glycobiosciences filed a patent infringement lawsuit against MPM Medical, Inc. in the Northern District of Texas.  Glycobiosciences claims that MPM Medical infringes, among others, United States Patent Nos. 5,897,880 and 6,723,345, both of which related to topical drug preparations.  The accused product is MPM Medical’s Regenecare HA.  A copy of the complaint is located here.

The case is before Judge Kinkeade.

Glycobiosciences is represented by Joseph Zito of ZITO tlp.

 

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Northern District of Texas Selected for Patent Pilot Program

Posted on June 9, 2011 by Steven Callahan

The Northern District of Texas was selected as one of fourteen federal district courts for a 10-year patent pilot program.  The United States Court’s press release describes the program as functioning in part as follows:

In the pilot program, patent cases filed in participating district courts are initially randomly assigned to all district judges, regardless of whether they have been designated to hear such cases.  A judge who is randomly assigned a patent case and is not among the designated judges may decline to accept the case. That case is then randomly assigned to one of the district judges designated to hear patent cases.

This selection will likely serve to increase the number of patent cases that are filed in the Northern District of Texas, and is an exciting development for the Northern District, as well as its IP practitioners.

 

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Supreme Court Upholds Clear and Convincing Burden of Proof For Challenging a Patent’s Validity

Posted on June 9, 2011 by Steven Callahan

In a major patent decision that issued today, the Supreme Court upheld, by an 8-0 vote, the Federal Circuit’s long-standing rule that 35 U.S.C. § 282 requires an invalidity defense to be proved by clear and convincing evidence.  A copy of the decision in Microsoft v. I4I (2011) is here.

Microsoft had lost to i4i in the Eastern District of Texas under a clear and convincing evidentiary standard for proving invalidity.  Microsoft had requested that the district court instruct the jury to use a preponderance of the evidence standard for prior art not before the PTO.  After the district court refused to do so, Microsoft first appealed the question to the Federal Circuit (which rejected Microsoft’s argument), and then to the Supreme Court.  The Supreme Court’s rejection of Microsoft’s argument means that Microsoft will have to pay i4i $290 million in damages.

Although the Supreme Court’s vote was 8-0, there was a real question in the patent community as to which way the decision would come out.  In fact, many patent holders, after the Supreme Court granted certiorari, agreed to use the lower, preponderance of the evidence standard of proof at trial for the invalidity question, so as to avoid a new trial in the event that the Supreme Court sided with Microsoft.  Now, it will be back to business at usual on the invalidity side of the case.

I4i was represented by attorneys with McKool Smith, P.C. before the District Court, the Federal Circuit, and the Supreme Court; attorneys with Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P. at the Federal Circuit and the Supreme Court; and attorneys with Sterne, Kessler, Goldstein & Fox and Wilmer Cutler Pickering Hale and Dorr LLP at the Supreme Court.  Seth Waxman argued for i4i at the Supreme Court.

Microsoft was represented by attorneys with Weil, Gotshal & Manges LLP before the District Court, the Federal Circuit, and the Supreme Court; and attorneys with Gibson, Dunn & Crutcher LLP at the Federal Circuit and Supreme Court.  Thomas Hungar argued for Microsoft at the Supreme Court.

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Make That Five Recent Patent Infringement Cases Filed in the Northern District of Texas

Posted on June 7, 2011 by Steven Callahan

Hydro-Québec, on June 6, 2011, filed suit against А123 Systems, Inc. and Valence Technology, Inc., in the Northern District of Texas.  Hydro-Québec, a Canadian “crown” corporation based out of Montreal, Quebec, accuses defendants of infringing U.S. Patent No. 7,955,733, which claims technology regarding rechargeable lithium batteries.  The patent was initially assigned to the University of Texas’ Board of Regents.  A copy of the complaint is located here.

Hydro-Québec is represented by James Cannon, Kevin Meek, Darryl Adams, and Ryan Bangert, all of Baker Botts L.L.P. The case is pending before Judge Boyle.

 

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Four New Patent Cases Filed in the Northern District of Texas

Posted on June 6, 2011 by Steven Callahan

In the wake of the Fifth Circuit’s en banc decision in In re Volkswagen of Am., Inc., 545 F.3d 304 (5th Cir. 2008), and the Federal Circuit’s decision in In re TS Tech USA Corp., 551 F.3d 1315 (Fed. Cir. 2008), both of which granted mandamus petitions to correct the erroneous denial of transfer motions by district courts, we have noticed an uptick in the amount of patent infringement cases being filed in the Northern District of Texas.  For example, in the last week or so, we’ve seen at least four new cases filed:

  • On May 27, 2011, PJC Logistics sued over ten companies in the Northern District of Texas, alleging infringement of US Patent No. 5,223,844, which claims technology relating to vehicle tracking and security.  PJC Logistics is represented by R. Mark Dietz, of the law firm of Dietz & Jarrard, P.C. The case is pending before Judge Boyle.  A copy of the complaint is here.
  • Also on May 27, 2011, ICON Internet Competence Network B.V. filed a lawsuit in the Northern District of Texas against Travelocity.com.  ICON claims that Travelocity infringes US Patent No. 6,002,853, which claims technology relating to database searches.  Attorneys with Matthews, Lawson & Johnson, PLLC; Provost Umphrey LLP, and Moore Landrey, LLP represent ICON.  The case is before Judge O’Connor.  A copy of the complaint is here.
  • On June 2, 2011, Select Retrieval filed suit against ten defendants—including Gamestop, J.C. Penney, and RadioShack—alleging infringement of US Patent Nos. 5,953,724 and 6,128,617, which claim technology relating to computer software databases and data display software, respectively.  The case is before Chief Judge Fitzwater, and R. Mark Dietz, of the law firm of Dietz & Jarrard, P.C., represents Select Retrieval.  A copy of the complaint is here.
  • Also on June 2, 2011, CodePro Innovations sued Blockbuster, Kohl’s, J.C. Penney, and Redbox in the Northern District of Texas.  The patents in suit, US Patent Nos. 5,924,078 and 5,717,866 relate to a promotional code point-of-sale discounting system and comparative analysis of consumer responses to product promotions, respectively.  The case is before Judge Solis, and R. Mark Dietz, of the law firm of Dietz & Jarrard, P.C., represents CodePro Innovations.  A copy of the complaint is here.

 

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Northern District of Texas Proposes Amendments to the Local Rules

Posted on March 6, 2011 by Steven Callahan

The new proposed amendments are available here.  Generally speaking, the proposed amendments make non-substantive changes to L.R. 7.1, 7.2, 53.1, 72.1, and 72.2.  These proposed amendments simply clarify the types of materials that may be relied upon when filing briefs or objections.  The proposed amendments also repeal L.R. 55.2, which relates to default judgments by the United States.

Unless modified after receipt of public comment, the proposed amendments take effect on September 1, 2011.  Any comments should be sent, by June 1, 2011, to:  Clerk of Court United States District Court for the Northern District of Texas Attention: 2011 Rules Revision Comments 1100 Commerce Street, Room 1452 Dallas, Texas 75242-1495.

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