Judge Solis Denies Motion to Enjoin and Motion to Dismiss in Excentus Patent In-fringement Lawsuit

Posted on March 4, 2013 by Steven Callahan

On February 5, 2013, Judge Solis issued an Order (available here) in Excentus v. CodePro, a patent infringement lawsuit pending in the Northern District of Texas.

Plaintiff (who had filed a declaratory judgment lawsuit against the Defendant after receiving a notice letter from the Defendant) had filed a motion to enjoin Defendant’s (later-filed) lawsuit filed in the Southern District of Texas. Judge Solis denied the motion to enjoin, as there were “two distinct lawsuits” at issue. For example, the only common party is Defendant, although each lawsuit involves the same patent. Judge Solis, however, allowed the issue to be raised again “in due course with proper cause.”

Judge Solis then denied Defendant’s motion to dismiss Plaintiff’s complaint. Judge Soli held that the plaintiff had adequately stated the elements for declaratory relief and had attached “smoking-gun style letters accusing it and its customers of patent infringement on a variety of theories.” Plaintiff had also shown that the Defendant “exhibits the propensity to sue over these patents as evidenced by past litigation.” Taken together, these circumstances triggered a case or controversy. In summary, the Court found that the Plaintiff had standing to bring suit in sufficiently pled claims for declaratory relief. 

Plaintiff Excentus is represented by Brett Govett, Karl Dial, and Michael Regitz, all of Fulbright & Jaworski.

Defendant CodePro Innovations is represented by Brett Johnson, Walton Webb, III, and Stephanie Wood, all of Farney Daniels P.C.

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Parallel Networks Files Petition And Motion To Vacate Arbitration Award Against Jenner & Block In Dallas County

Posted on February 20, 2013 by Steven Callahan

On January 29, 2013, Parallel Networks (a company that has filed a lot of patent infringement lawsuits) filed its Petition and Motion to Vacate Arbitration Award (available here) in Dallas County. In essence, Parallel Networks claims that an arbitrator exceeded his powers in awarding Jenner & Block (Parallel Network’s prior counsel in patent infringement litigation) damages.

The petition raises interesting issues concerning patent infringement contingency fee agreements, and is worth a read. Exhibit A to the petition is the contingency fee agreement at issue.

Parallel Networks is represented by Jamil Alibhai, Ryan Loveless, Jane Neiswender, and Kelly Chen, all of Munck Wilson Mandala, LLP.

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Cassidian Hits GN-911 With Patent Infringement Lawsuit

Posted on February 20, 2013 by Steven Callahan

On February 8, 2013, Cassidian launched its patent infringement lawsuit (complaint available here) against NG-911 in the Northern District of Texas. Cassidian claims that NG-911’s emergency communications systems infringe Cassidian’s U.S. Patent No. 6,774,858.

Cassidian is represented by Brett Govett of Fulbright & Jaworski L.L.P. and Denise De Mory, of Bunsow, De Mory, Smith & Allison, LLP.

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Federal Inmates Pleads Guilty to Threatening Judge Cummings

Posted on February 20, 2013 by Steven Callahan

On January 31, 2013, a federal inmate pled guilty to mailing a threatening communication to Judge Cummings, which expressed unhappiness with the inmate’s incarceration. The inmate faces a 10 year jail sentence and a $250,000 fine. More details are available at the Northern District of Texas’ US Attorney’s Office’s website, which is available here.

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Judge Ferguson Rules On Motions In Limine In Patent Infringement Case

Posted on February 4, 2013 by Steven Callahan

On January 25, 2013, Judge Ferguson issued an Order (available here) in Axcess International v. Savi Technologies that resolved various motions in limine. Key rulings from Judge Ferguson’s Order are as follows:

Presumption of Validity. “The Court is of the opinion that arguing that the patent is valid because a patent was issued can lead to jury confusion and prejudice [Defendant].” The plaintiff was therefore precluded from presenting evidence or argument regarding the presumption of validity. However, the plaintiff could still explain and argue that the defendant has a heightened burden of proof and that the defendant must prove invalidity by clear and convincing evidence.

Expert Testimony. The Court limited all expert testimony to the experts’ reports.

Embodying Products Lay Testimony. Defendant had requested a ruling that the plaintiff was prohibited from stating that the plaintiff’s products practice the patent- in-suit because the plaintiff had failed to present any expert opinions on the subject. The Court noted that the defendant cited no authority for the proposition that expert testimony is required to establish that the plaintiff’s products practice the patent-in-suit, nor did the defendant present and legitimate evidentiary reason for the defendant’s assertion that evidence that the plaintiff’s products practice the patent-in-suit should be excluded. The Court denied the motion in limine.

Indemnity Agreement. The Court granted the defendant’s motion in limine seeking to preclude the plaintiff from offering evidence that a third party was indemnifying defendant and paying for the defendant’s attorneys fees.

Axcess International is represented by Steven Aldous and Robert Varner, both of Braden Varner & Aldous; Charles Cantine, Vivian Luo, and Joseph Diamante, all of Stroock & Stroock & Lavan LLP; David Skeels, Glenn Orman, Michael Cooke, and Jonathan Suder, all of Friedman Suder & Cooke PC.

Savi is represented by Eric Pinker, Chistopher Schwegmann, and Mark Turk, all of Lynn Tillotson Pinker & Cox; Boris Matvenko, Marvin Gittes, Peter Snell, and Timur Slonim, all of Mintz Levin Cohn Ferris Glovsky & Popeo PC.

 

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Federal Circuit Issues In Re EMC Corp. Mandamus Decision, Offering Substantial Guidance To Judges And Patent Practitioners In The Northern District of Texas On Transfer Issues

Posted on February 4, 2013 by Steven Callahan

On January 29, 2013, the Federal Circuit issued its mandamus decision in In re EMC Corp. (available here). This decision, which applies in all patent infringement cases filed within the Fifth Circuit, such as in the Northern District of Texas, provides substantial guidance to judges handling patent cases, as well as patent practitioners.

While the entire decision is worth a read, two principles stand out. First, it is important that Courts address motions to transfer at the outset of litigation. “Congress’ intent ‘to prevent the waste of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense,’ Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (internal quotation marks omitted), may be thwarted where * * * defendants must partake in years of litigation prior to a determination on a transfer motion.”

Second, “[m]otions to transfer venue are to be decided based on ‘the situation which existed when suit was instituted.’ Hoffman v. Blaski, 363 U.S. 335, 343 (1960) (quoting Paramount Pictures, Inc. v. Rodney, 186 F.2d 111, 119 (3d Cir. 1950) (Hastie, J., dissenting)). Any subsequent familiarity gained by the district court is therefore irrelevant.” However, “[w]hile considerations of judicial economy arising after the filing of a suit do not weigh against transfer, a district court may properly consider any judicial economy benefits which would have been apparent at the time the suit was filed.”

These principles, taken together, mean that a district court cannot rely on judicial economy principles that arise from the fact that the court had become familiar with the patent in the time the court took to decide the transfer motion. However, the district court need not ignore the fact that several patent infringement cases involving the same plaintiff and same patent had been filed in his or her court, or any familiarity gained from prior cases.

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Wireless Handover OY Hits AT&T With A Patent Infringement Lawsuit

Posted on February 4, 2013 by Steven Callahan

On January 31, 2013, Wireless Handover filed its lawsuit (complaint available here) against AT&T in the Northern District of Texas. Wireless Handover asserts that AT&T infringes United States Patent No. 7,953,407, which claims technology relating to centralized management of telecommunications parameters.

Wireless Handover is represented by Everett Upshaw and Craig Uhrich, both of the Law Office of Everett Upshaw, PLLC; and Arthur Navarro, of Navarro Law Office, PC.

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Sutherland Files Patent Infringement Lawsuit Against Teak Warehouse

Posted on February 4, 2013 by Steven Callahan

On January 31, 2013, David Sutherland, Inc. filed a patent infringement lawsuit in the Northern District of Texas (complaint available here) against Teak Warehouse Inc. Sutherland claims that Teak infringes US Design Patent No. D490,995, entitled “Pool Chair.” Sutherland also claims that Teak has committed trade dress infringement, false advertising, and unfair competition. In essence, Sutherland claims that Teak “sells and offers for sale [T]eak furniture that constitutes inferior copies of Plaintiff Sutherland’s high quality, award-winning, proprietary furniture designs, particularly including Sutherland’s Poolside Collection.”

Sutherland is represented by Paul Storm and Sara Paxson, both of Gardere Wynne Sewell, LLP.

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Judge Means Denies Bell Helicopter’s Motion For Preliminary Injunction

Posted on February 4, 2013 by Steven Callahan

On January 30, 2013, Judge Means of the Northern District of Texas issued an order (available here) denying Bell Helicopter’s motion for preliminary injunction, which had sought to preliminary enjoin defendant Vector Aerospace from selling certain removable components of the B407 fuselage repair fixture located at Vector’s Langley, British Columbia facility.

Judge Means concluded, among other things, that Bell Helicopter had not met its burden of establishing a likelihood of success on the merits with respect to its claims for misappropriation and conversion of the relevant components or its corresponding claims for breach of contract.

Bell Helicopter is represented by John Proctor, David Chant, Vince Cruz, all of Brown Dean Wiseman Proctor Hart & Howell; and Phillip Sechler, of Williams & Connolly LLP.

Vector Aerospace is represented by Thad Dameris, Corey Roush, and John Robertson, all of Hogan Lovells US LLP; and David Keltner, of Kelly Hart & Hallman.

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Bitzer Sues Beijing Brilliant Refrigeration For Patent Infringement

Posted on February 4, 2013 by Steven Callahan

On January 29, 2013, Bitzer Kuhlmaschinenbau GmbH filed a patent infringement lawsuit (complaint available here) against Beijing Brilliant Refrigeration Equipment Co., and others, in the Northern District of Texas.

Bitzer claims that defendants infringe United States Design Patent No. D479,247, through the marketing and offering of products for sale in Texas at the AHR Expo tradeshow. Bitzer also claims that defendants have committed trademark infringement, trademark dilution, false designation of origin, and unfair competition.

Bitzer is represented by John Flaim, Jay Utley, and Kimberly Rich, all of Baker & McKenzie LLP.

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