Eastern District of Texas Federal Court Practice

"Honeywell Loses Texas 'Trolling Try'" Article

Joe Mullin has a good story this week Honeywell Loses Texas "Trolling Try" on the outcome of Honeywell's licensing arm's litigation against eight LCD panel manufacturers in the Eastern District (specifically Judge Davis and Love's court in Tyler).  According to Joe, seven of the eight defendants settled over the course of litigation, but the eighth which did not settle, a small Taiwanese company called Novatek, won summary judgment of noninfringement earlier this month.  (Ed. note - I am part of the team of attorneys representing Novatek in this case so I had sort of heard of this before I saw the article). 
The article focuses on Honeywell's use of the business model of establishing a licensing operation, Honeywell Intellectual Property International (HIPI), which is kept separate from Honeywell’s operating divisions, to monetize its IP.

Multitasking in a patent case

Interesting order today in the LaserDynamics v. Quanta case getting ready to start trial in Judge Ward's court that may say something about bench briefs, or at least the division of labor at trial in patent cases.  The court entered an order stating that Judge Everingham would hear argument on the issues raised in the parties’ bench briefs downstairs while the parties are making opening statements upstairs. 

Jury verdict in Centocor v. Abbott

A Marshall jury in Judge Ward's court rendered a verdict in favor of  the plaintiff Centocor today.  The jury sent out five notes before finding that the defendant infringed all four of the asserted claims.  The jury found that Abbott had failed to show by clear and convincing evidence that the claims were invalid for failure to meet the enablement requirement, the written description requirement, or as anticipated, and that the plaintiff had shown by clear and convincing evidence that the infringement was willful.  

Damages were set at $1.168 billion dollars in lost profits, and $504.128 million in royalties.

"Fallout From In re TS Tech: Venue Disputes in Texas" - presentation at 2009 State Bar of Texas Annual Meeting

If you were attending the State Bar of Texas' annual meeting in Dallas today, at 9 this morning you could have heard me speaking on the state of patent venue law post-In re TS Tech, or you could have heard Justice Antonin Scalia and Bryan Garner talking about their new book Making Your Case: The Art of Persuading Judges.  Amazingly, a roomful of patent lawyers made the wrong choice and came to listen to me instead of the Supreme Court justice, but I got out in time to get Justice Scalia to autograph my book (very nice inscription - it reads "To my favorite renegade jurisdiction lawyer, Nino.")
Great, great conference - speakers including Doris Kearns Goodwin on Lincoln (with a little LBJ tossed in), Roger Cossack on being a legal analyst, Morris Dees, Roger Cossack, a panel of law school deans including Ken Starr, New York Times columnist David Brooks (who claims he was on his way to Argentina) and historian Richard Beeman, author of Plain, Honest Men: The Making of The American Constitution, as well as my friend Talmage Boston pitching (pun intended) his latest baseball book Baseball and the Baby Boomer: A History, Commentary and Memoir.  I was pleased to score signed copies of the latter two, but unfortunately forgot to bring my three Goodwin books to have them signed, despite spending three days last week on our camping trip reading her LBJ book.  (But it was really cool getting to talk to her about it).
Great CLE as well as terrific speakers, and it was good seeing my friends from the State Bar again.

Motion to Transfer Venue from Sherman to California Denied

Worldpak Intern., LLC v. Diablo Valley Packaging, Inc., 2009 WL 1708080(E.D.Tex. Jun 16, 2009) (NO. 4:08CV469)
Judge: Michael Schneider/Amos Mazzant
Holding: Motion to Transfer Venue DENIED
This is a tortious interference with contract case between two businesses brought in Judge Michael Schneider's court in Sherman.  Judge Schneider accepted Magistrate Judge Amos Mazzant's report and recommendation that the defendant's motion to transfer the case from Sherman to California be denied. 
Notably, the plaintiff in this case is located in Plano, Texas, so while the defendant and its documents were in CA, the plaintiff and its were a few miles down the road from the courthouse in Texas.  The other factors were similarly either split or neutral, thus Judge Mazzant recommended - and Judge Schneider agreed - that the motion be denied.

Motion to Dismiss or Transfer for Improper or Inconvenient Venue Denied

GBS Development, Inc. v. West, 2009 WL 1703217(E.D.Tex. Jun 18, 2009) (NO. CIV A 5:09-CV-39(DF))
Judge: David Folsom
Holding: Defendant's Motion to Dismiss for Improper Venue DENIED.
This is a securities case in which the defendant sought a transfer to Dallas claiming that venue was not proper, as well as that a transfer was proper under 1404 for convenience grounds.  Judge Folsom rejected the first assertion, noting that part of the claimed acts occurred in the district.  As for the second, the Court noted that several of the plaintiffs were located in Arkansas, near Texarkana, thus a transfer would inconvenience them, although it would convenience (I think that's now officially a verb) the defendants.  But in fact, Texarkana was actually the most convenient location for the claimed witnesses, since some were east of it, and some west, so a transfer to Dallas would be a pronounced step backwards when it came to witness convenience. 
According, the Court concluded that "the Eastern District of Texas is a proper venue for this action. In addition, given the specific facts and circumstances of this case, only one factor-local interest-weighs slightly in favor of transfer. All the other factors do not weigh in favor of transfer or weigh strongly against transfer. When all of these factors are considered collectively, the Court concludes Defendants has failed to clearly demonstrate that the Dallas Division of the Northern District of Texas would be a more convenient venue than the Texarkana Division of the Eastern District of Texas."  (Emphasis in original).

1901 Harrison County Courthouse in Marshall Rededicated

 After fifteen years working on the project I unfortunately missed the big day Saturday, but it went ahead without me, and the historic Harrison County Courthouse was rededicated Saturday in Marshall.  Which means that that godawful square brick and glass box across the street is now officially the courthouse annex.  (What they'll call the building that was previously the annex now I'm not sure). As readers know, Judge Everingham has already conducted one hearing in the building when both courtrooms in the federal courthouse were busy with trials, and we all expect (and hope for) many more.
The adjacent picture by Courtney Case provides a good view of the rotunda interior from the third floor (the green circle at the bottom is the new glass floor that provides light into the basement level - there used to be one just like it in the Texas Capitol).
Also shown is a picture of the two singers for the event, Don Parks and Nancy Vines of Marshall, who handled the national and state anthems.  (I can't help but point out that Don and Nancy were also the two singers at Jamie and my wedding thirteen years ago, which should give you an idea just how small Marshall really is).  It's also a pretty good picture of the courthouse from ground level.

Clawback Effective; Privilege Not Waived

Datatreasury v. Wells Fargo, et al, No. 2:06cv00072 (June 8, 2009)
Judge: David Folsom
Holding: Motion to Determine Privilege and Waiver DENIED
Plaintiff asked the court to hold that one of the defendant's documents was not privileged, or if it were, the privilege had been waived.  Judge Folsom denied the motion holding that it contained legal analysis, and the Wells Fargo had not waived the protection, i.e. its "clawback" was effective.

Texas Lawyer's "I Like Being A Lawyer" by Susan Fisher

Texas Lawyer runs a periodic column "I Like Being A Lawyer" where contributors list their top five reasons why they like being a lawyer.  This week's contributor was Susan Fisher from SRBPS - Sherman, who in addition to her day job at our firm's Sherman office also moonlights as a State Bar director representing 25-odd Northeast Texas counties (can't imagine who might have talked her into that).  She writes:

Top 5 Reasons I Like Being a Texas Lawyer:

1. As lawyers, we have the opportunity to make a difference — not only in our local communities, but nationally and globally.
2. Every day is different.
3. Each case has unique questions and challenges that sometimes call for creative solutions.
4. I get to meet a lot of amazing and interesting people.
5. I get to write.

I don't know about that writing business... Sound suspicious to me.

Art at Work: Summer 2009 - Various Artists

For the summer months, our Art at Work program is featuring a variety of artists with a summer-y motif (Carol Pace tells me) including a lot of, well, sea-ish stuff, like fish hooks, and, uh, animals and stuff. 
Out front we have a stunning new watercolor of the old (for eight more days) Harrison County Courthouse by Carol Pace to celebrate its rededication as "the" Harrison County Courthouse on June 20, flanked by a pair of new "fish hook" paintings by Jo Ann Imhoff and a sunset landscape by Mary Norvell.  The frames on the fish hooks  are painted the same as the canvas, and the painting wraps around the side - they're real attention-getters.  (To the left is a close-up that will hopefully show this a little better - two are a sort of aqua-blue and a third is deep purple).  Also out front is a flamingo and a Neptune by Sally Martin, a floral by Mary Norvell and a floral by Mieko, and a large equestrian collage-type painting by Lou Violette.  Down the hall, we've hung on to Bob Metzger's beautiful watercolor of downtown (an office favorite) , and in one of the visiting lawyer offices we have a purple fish hook by Joanne (my favorite of the three) and the original of Carol Pace's old courthouse that we used on our firm's Christmas cards last year.  The original plan was for that to stay out front, but we've had such great art to show off lately it has been spending time in a side office.