Judge Kinkeade Tosses Patent Infringement Case Due to Lack of Standing

Posted on April 28, 2015 by Steven Callahan

Judge Kinkeade issued an order in Optimal Golf v. Altex Corp. (available here) finding that the plaintiffs lacked standing when the case was filed. The Court was not happy, writing:

This is now the second case involving the same patent and same Plaintiff where the Court found Optimal had no standing to bring this suit. The procedural history of this case paints the picture that Optimal, along with the other Plaintiffs GPS and OGSI, hastily filed this second suit before determining who would be the proper plaintiff(s) to prosecute it. The Plaintiffs in both cases appear to have given no thought to actual ownership of the ‘093 Patent until years into litigation. This has been incredibly frustrating to the Court, and surely to the parties defending these suits. Two cases now have been dismissed for jurisdictional issues related solely to standing and it has been a waste of judicial resources, as well as those of the Defendants. The Court warns that any future jurisdictional defects involving standing related to this patent and these plaintiffs will likely result in sanctions.

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Judge Kinkeade Transfers Patent Case to Western District of Texas

Posted on April 28, 2015 by Steven Callahan

On March 9, 2015, Judge Kinkeade entered an Order (available here) in Smith’s Consumer Products v. Fortune Products transferring the case from the Northern District of Texas to the Western District of Texas. Plaintiff was a Delaware corporation with its principal place of business in Arkansas and no employees in Texas. Defendant was a Texas corporation with its principal place of business in the Western District of Texas.

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Judge Lynn Denies Motion for Stay Pending Covered Business Method Patent Review

Posted on April 28, 2015 by Steven Callahan

On April 24, 2015, Judge Lynn issued an opinion in Credit Card Fraud Control v. Maxmind (available here). Defendant sought to stay the case pending CBM review. Judge Lynn denied the motion to stay, in large part because the PTAB had not yet determined whether to institute a proceeding and because the litigation had proceeded relatively far along.

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Improperly Redacted Document Leads to Unsealing Order

Posted on April 28, 2015 by Steven Callahan

I previously wrote about how documents are often improperly redacted (from a technical perspective). In the decision available here, the Court held that, when documents have been filed in an unredacted form (because they were not properly redacted), they are no longer confidential. Accordingly, the Court held that the documents at issue would be unsealed.

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Jury Issues Verdict in Melchior v. Hilite Case

Posted on March 28, 2015 by Steven Callahan

On February 27, 2014, the jury returned a verdict (available here) in Melchior v. Hilite, a case tried before Judge Lynn. The jury found that defendants infringed the patents in suit and the patents in suit were not anticipated or invalid due to prior invention or obviousness. The jury awarded over $18 million in damages.

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Magistrate Judge Ramirez Issues Findings, Conclusions and Recommendation On Exceptional Case/Attorney’s Fees Motion

Posted on March 28, 2015 by Steven Callahan

In H-W Technology v. Overstock.com, defendant filed a motion for requesting exception case finding and an award of attorney’s fees. Judge Ramirez recommended the denial of this motion (decision available here). Judge Ramirez’s decision contains a good discussion of the exceptional case law post-Octane, and the law governing requests for sanctions under 28 U.S.C. § 1927 and the Court’s inherent authority.

Of interest is also Judge Ramirez’s discussion of when sur-replies should be allowed:

The purpose of filing a reply “is to give the movant the final opportunity to be heard, and to rebut the nonmovants’ response, thereby persuading the court that the movant is entitled to the relief requested by the motion.” Info–Power Int’l, Inc. v. Coldwater Tech., Inc., No. 3:07–CV–0937–P, 2008 WL 5552245, at *8 (N.D. Tex. Dec.31, 2008) (citation and internal quotation marks omitted). For this reason, “a court generally will not consider arguments raised for the first time in a reply brief.” Pennsylvania Gen. Ins. Co. v. Story, No. CIV.A.3:03–CV–0330–G, 2003 WL 21435511, at *1 (N.D. Tex. June 10, 2003) (citations omitted). An exception may be made, however, and leave to file a sur-reply may be granted, to allow the “nonmovants . . . a chance to respond” to the movant’s newly-asserted theories or evidence. See id. Leave to file a sur-reply is unwarranted, however, where the proposed sur-reply merely restates the arguments made in the party’s initial response. See, e.g., Williams v. Aviall Serv. Inc., 76 F. App’x 534, 535 (5th Cir. 2003) (affirming denial of motion for leave to file a sur-reply because it did not include additional arguments or evidence).

Here, Plaintiff has not shown any justification for a sur-reply. Defendant’s alleged assertion of inaccurate facts does not amount to new evidence. See Branton v. City of Dallas, No. Civ.A:3:97-CV-0245-P, 1999 WL 765646 (N.D. Tex. Sept. 23, 1999) (denying motion for leave to file a surreply correcting inaccuracies in the reply, finding “that no justification for the filing of materials outside the normal course of briefing has been shown.”) rev’d on other grounds, Branton v. City of Dallas, 272 F.3d 730 (5th Cir. 2001). 

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Motion to Dismiss and Motion for Preliminary Injunction Denied in Infinite v. Strukmeyer Case

Posted on March 28, 2015 by Steven Callahan

Judge Godbey resolved plaintiffs’ motion for a preliminary injunction and defendants’ motion to dismiss in Infinite v. Strukmeyer, denying both motions. The Order is available here. Judge Godbey found that the plaintiffs had met the federal pleading standards with their complaint, but that they had not shown a substantial likelihood of success on the merits (and accordingly denied their injunction request).

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Default Judgment Entered in Dehn’s Innovations v. Cleanblastor

Posted on March 28, 2015 by Steven Callahan

On March 10, 2015, Judge Godbey entered a default judgment (available here) in Dehn’s Innovations v. Cleanblastor. The judgment awarded attorney’s fees and treble damages totaling $223,000.

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Judge McBryde Issues Indefiniteness Opinion In Invue v. Hangzhou

Posted on March 28, 2015 by Steven Callahan

In his Order Rejecting Defendants’ Remaining Indefiniteness Claims (available here), Judge McByrde rejected the accused infringer’s claim that certain claim terms were indefinite. In resolving the assertion, Judge McBryde applied the recently articulated indefiniteness standard in the Supreme Court’s Nautilus v. Biosig decision.

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Judge McBryde Precludes Expert Testimony In Invue v. Hangzhou

Posted on March 28, 2015 by Steven Callahan

Judge McBryde issued an Order (available here) in Invue v. Hangzhou. The Court concluded that, with respect to an expert whose report “provides virtually none of the information required by Rule 26(a)(2)(B)(i),” such expert would not be permitted to serve as an expert witness. With respect to a second expert, the Court concluded that his testimony “will be strictly limited to the contents of his initial report” plus plaintiff’s infringement charts.

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