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Federal Judiciary: Eastern District of Texas Federal Court Practice
Summary judgment granted as to claims of willful infringement; case settles prior to jury selection
By Michael C. Smith
Some interesting rulings at the pretrial conference last Thursday September 10 in Crane v. Sandenvendo America and Royal Vendors Thursday (I am local for Sandenvendo so I had a good seat for them). This is a patent infringement case dealing with glass-front cold drink vending machines brought by Crane against Sandenvendo and Royal. The Court conducted an initial pretrial week before last, but set a second one to address pending summary judgment and other motions on the Thursday before jury selection.
Judge Everingham began the pretrial conference by hearing argument on the plaintiff's motion to disqualify one of the law firms representing Royal filed shortly before the initial pretrial a couple of weeks . After half an hour of argument, Judge Everingham denied the motion, noting that the subject matter of the two cases was not "substantially related", citing Judge Folsom's opinion in the Power Mosfet Technologies case interpreting the Fifth Circuit's American Airlines standard.
Next up were defendants' motions for summary judgment as to the plaintiff's claims of willful infringement. After another almost half hour of argument, Judge Everingham granted Sandenvendo's motion, and then Royal's, telling the parties that he believed that willfulness just wasn't in the case, in light of the raised standard of Seagate.
Defendants next sought summary judgment on notice issues, and Judge Everingham denied the notice MSJs by both defendants. But as to the motions seeking summary judgment on the plaintiff's claims for lost profits, the court carried the motion, promising a ruling before the evidence began on Tuesday (the case was set to pick a jury Monday, September 14.
At this point, plaintiff's counsel told the judge he thought the case couldn't be ready for trial due to the need to complete a corporate representative deposition of one of the defendants, as well as a claim that the other defendant had not produced documents. Judge Everingham resolved the deposition issue by ordering the deposition taken Saturday the 12th, and then told the parties in no uncertain terms that the case would not be continued and that they would be starting trial on Monday. .
The judge then ripped through the parties' numerous motions in limine, many of which raised common issues in cases such as these, including providing rulings on the admissibility of evidence of the pending reexamination, including the final office action recently issued by the PTO on one of the three asserted patents. This issue was unusually (and unexpectedly) complex since the day before the hearing the plaintiff had filed amendments to most of the asserted claims in the second patent in the PTO. At the hearing, however plaintiff, in a homage to Gilda Radner's Emily Litella that broughts tears to the eyes of onlookers, asserted that was a mistake and that none of the claims were really being amended - and later in the day provided an amended PTO filing for the court's review to confirm that trial was not being sought on amended claims which had not yet issued, something the Court expressed distinct opinions regarding.
With that issue out of the way, next up was the defendants' motion to strike the plaintiff's fifth amended infringement contentions. In this case, the plaintiff amended its contentions following the Court's claims construction to assert doctrine of equivalents for the first time, claiming that the amendment did not require leave of court because they were surprised by the Court's Markman ruling as to a term. The parties argued the applicability of Judge Clark's Nike opinion, in which he held that a party could only amend without leave following a Markman if it was truly surprised by the Court's construction, and that a construction that adopted (or essentially adopted) a party's construction could not constitute surprise. In this case, defendants were claiming that the construction was essentially defendants' construction, thus the amendment could not be under the "post-Markman plus surprise" PR 3-6(a), which did not require leave, but instead should require leave under PR 3-6(b), which requires "good cause". Plaintiff argued that there was the requisite surprise to permit amendment without leave. Judge Everingham stated that he would carry this motion, and did not announce a ruling.
The parties reached settlements yesterday and today prior to picking a jury.
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