Federal Judiciary

Update on Status of 2006 Eastern District Patent Verdicts

By Michael Smith

Readers know from my recent post on 2007 patent verdicts that last year the patent trial outcomes locally ran six for defendants, one for plaintiffs and split (some patents infringed and some not) in the other two.
After posting on the Federal Circuit's recent decision in the Finisar case, I thought I'd go back and see how the 2006 outcomes were faring.
In 2006,  eight patent cases went to trial in the Eastern District.  Initially, plaintiffs won six and lost two.  Four of those plaintiff wins have now made their way through the appeal process, at least partway (as best I can tell, not much is ever final from the Federal Circuit).  While I'm not going to go into detail on what happened in the appeals, (ph - Patent Happenings is a good place to check out the details on what the Federal Circuit does to these cases on appeal) the Federal Circuit found claims construction errors in three out of four (only z4 Technologies v. Microsoft didn't have claims construction issue of appeal) but in one of those three the jury's verdict was able to stand anyway (TiVo v. Echostar, although it was remanded for some other proceedings).  In the other two, O2 Micro v. Beyond Innovation Technology and now Finisar v. DirecTV the verdicts were vacated and remanded for claims construction issues - interestingly only one term in each was at issue.  In the former, the term "only if" was not construed, and the court held it should have been, and in the second the term ?downloading into a memory storage device? was construed too broadly.  The fifth plaintiff outcome, Avid v. Datamars, is still pending before Judge Ward on postjudgment motions, and I have no idea what happened in Visto v. SEVEN as far as appeal - I just know no appeal has been decided.
A couple of caveats - first, cert is pending in z4, (76 USLW 3540  (Mar 31, 2008)(NO. 07-1243)) as Microsoft has asked the Supreme Court to ditch the Federal Circuit's "clear and convincing evidence" standard for invalidity challenges, but as commentators have noted, the facts of the case don't present the best argument for the Court addressing this issue, so it's unclear (at least to me) whether the Court will use this case to address that issue.  Second, Finisar was coming back for a second reason - Judge Clark was directed to reconsider the anticipation and obviousness issues (and the pre-In re Seagate willfulness finding was coming out regardless).  But  I thought I'd note that we're down to four plaintiff outcomes and two defense, with two to be retried, and proceedings still ongoing in two others (of the four).  So basically, not much is yet final, other than that the perhaps overly simplistic observation that the Federal Circuit is vacating about half the local verdicts it's seeing on appeal - and both because of a problem with one claim term. 

Full post as published by Eastern District of Texas Federal Court Practice on April 21, 2008 (boomark / email).