Judge Lynn Transfers Cian Patent Infringement Case to the Western District of Texas

Posted on April 27, 2012 by Steven Callahan

On April 24, 2012, Judge Lynn entered an Order (available here) granting National Instruments’ motion to transfer venue to the Western District of Texas.  Judge Lynn found that “[t]he only connection either party has to this District is that the accused products are allegedly sold here and Plaintiff has brought other litigation on the patent-in-suit that is pending in this district.”  Because National Instruments met its burden to show that the Western District of Texas was clearly more convenient that the Northern District of Texas, Judge Lynn granted the transfer motion.  

Cian IP LLC is represented by Paul Skiermont, Donald Puckett, Rajkumar Vinnakota, and Amy LaValle, all of Skiermont Puckett LLP; and Andrew Spangler, of Spangler & Fussell PC.  

National Instruments is represented by Ryan Beard and Eric Meyertons, both of Meyertons Hood Kivlin Kowert & Goetzel; and Chris Perque and Thomas Wright, both of Gardere Wynne Sewell.

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Judge Godbey Awards Damages, Pre-Judgment Interest in Truseal Patent Infringement Case

Posted on March 23, 2012 by Steven Callahan

On March 21, 2012, Judge Godbey issued an opinion (available here) in Truseal Technologies v. GGK Distribution that awarded Truseal $171,157.64 in lost-profit damages, as well as pre-judgment interest (based on the Treasury bill rate).  Judge Godbey had previously found that GGK Distribution infringed the patent-in-suit.

Truseal is represented by William Finegan of Fulbright & Jaworski; and Lawrence Drasner and Todd Tucker, both of Renner Otto Boisselle & Sklar LLP.

GGK Distribution was previously represented by Bryan Harrison and John Fry, both of Morris Manning & Martin LLP; and Timothy Taylor of Andrews Kurth.

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The Model Order

Posted on March 19, 2012 by Steven Callahan

At this year’s Eastern District of Texas Bench Bar Conference, the Federal Circuit’s Chief Judge Rader gave a speech (attached) and introduced what is now known as the “Model Order” (located at the very end of the attached pdf) which deals with e-discovery in patent infringement cases.  If you practice patent litigation, you should familiarize yourself with both Chief Judge Rader’s speech and the Model Order.  Although the Model Order is not binding in any jurisdiction, it has become very persuasive on e-discovery issues in patent infringement cases across the country.

For example, the Eastern District of Texas recently issued its own Model Order Regarding E-Discovery in Patent Cases, which is based on Chief Judge Rader’s Model Order.  The Eastern District’s Model Order is available here (this version is a redline/strikeout version showing the changes that were made to Chief Judge Rader’s Model Order).

It is yet to be seen whether the Judges in Northern District of Texas will adopt similar e-discovery orders in patent infringement cases, although we expect parties in patent infringement cases will (if they are not doing so already) request that e-discovery orders be entered in their cases.

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Magistrate Judge Kaplan to Step Down on August 31

Posted on March 18, 2012 by Steven Callahan

We have it on good authority that Magistrate Judge Kaplan will step down from his position on August 31, 2012.  Judge Kaplan has a long history of judicial service, and we wish him well with his future endeavors.

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Judge Furgeson To Head University of North Texas Dallas College of the Law

Posted on January 12, 2012 by Steven Callahan

Judge Furgeson of the Northern District of Texas has been selected to become Dean of the University of North Texas Dallas College of the Law.  According to the law.com article (available here), Judge Furgeson will remain on the bench for the next fifteen months, and then assume his responsibilities as dean.  The first law school class appears set to matriculate in 2014.

Congratulations to Judge Furgeson.

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Five Practice Tips For the New Year

Posted on December 28, 2011 by Steven Callahan

Here are five practice tips that may be of use in the New Year:

  1. When drafting documents, electronically highlight any areas that need to be filled in later.  Don’t just leave them blank with a “______.”  We’ve seen several filings with Courts or discovery responses that have “______” in them and it’s because nobody proofread the “final” document.  It’s much less likely that someone will file or serve a document with highlights in it because even a quick review of the document shows that the document is not final.
  2. Don’t only send important documents (e.g., letters) to opposing counsel by e-mail.  If the document is important, also send it by fax, FedEx/UPS, and/or certified mail, return receipt requested.  You’ll want to be able to prove that opposing counsel received it.  Also, materials cannot be served by e-mail under the Federal Rules (see Fed. R. Civ. P. 5(b)(2)(E)) unless opposing counsel consented in writing to e-mail service.
  3. When electronically filing documents with the Court or serving discovery responses on opposing counsel, etc., print the document to pdf.  Don’t print out the document to hard copy and then scan it.  Printing to pdf, instead of printing out a hard copy of the document and then scanning it, has several advantages, including that the printed-to-pdf document (i) looks cleaner, (ii) takes up less space (some scans can take up to 10MB or more of space), and (iii) is text searchable.
  4. Don’t “reply all” to an e-mail without making sure everyone who will be receiving your response is an intended recipient.  We’ve seen opposing counsel in a number of occasions hit “reply” and send us e-mails that were meant for their internal teams.
  5. Spend the 10 minutes it takes to learn how to scan (or photocopy) a document and send a fax.  There’s a good chance that your support staff won’t always be around when you need them.
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Does the Northern District of Texas have Patent Rules?

Posted on November 18, 2011 by Steven Callahan

Yes.  Although not found in the Northern District of Texas’ Local Rules, the Northern District of Texas does have a set of patent rules.  They are found in Amended Miscellaneous Order No. 62, which is located here.

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Mick Haig’s Counsel Sanctioned by Judge Godbey

Posted on October 6, 2011 by Steven Callahan

On September 9, 2011, Judge Godbey sanctioned the plaintiff’s counsel in Mick Haig Productions v. Does 1-670.  Specifically, Judge Godbey sanctioned the plaintiff’s counsel $10,000 for issuing subpoenas to ISPs in violation of a Court Order.  Judge Godbey also ordered the plaintiff’s counsel to pay the opposing counsel’s attorney’s fees and expenses.  Opposing counsel has requested $22,000.  The sanctioned counsel has appealed Judge Godbey’s decision to the United States Court of Appeals for the Fifth Circuit.  A copy of Judge Godbey’s decision is here.

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Do I Get An Extra 3 Days to Respond to a Motion Filed Electronically in the Northern District of Texas?

Posted on September 5, 2011 by Steven Callahan

No.  Under Local Rule 7.1(e), “[a] response and brief to an opposed motion must be filed within 21 days from the date the motion is filed.”  (Reply briefs may generally be filed “within 14 days from the date the response is filed.”  See L.R. 7.1(f).)  Federal Rule of Civil Procedure 6(d) states that, “[w]hen a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C), (D), (E), or (F) [involving methods of service, including service by electronic means], 3 days are added after the period would otherwise expire under Rule 6(a).”  Because the 3 day extension only potentially applies to deadlines calculated based on the “service” of papers, and the deadlines for briefing in the Northern District are calculated based on the date a motion (or response) is “filed,” an extra 3 days is not added onto the response (or reply) deadline.

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Lhoist Files Patent Infringement Lawsuit in the Northern District of Texas

Posted on September 5, 2011 by Steven Callahan

On September 1, 2011, Lhoist North America, Inc. filed a patent infringement lawsuit in the Northern District of Texas (copy of complaint available here).  Lhoist claims that Defendants Construction Material Recycling Inc. and Lyndon Jones Construction, Inc. infringe Lhoist’s United States Patent No. 5,544, 971.  The ’971 patent claims a method for recycling asphalt pavement.

The case has been assigned to Judge McBryde, but, because it was filed on September 1, 2011, it will be reassigned to either Judge Lynn, Judge Godbey, or Judge Kinkeade in accordance with the Patent Pilot Project.

Lhoist is represented by Richard Schwartz and Thomas Harkins, Jr., both of Whitaker Chalk Swindle & Schwartz, PLLC.

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