Findlay Craft, LLP

New Multiple Defendant Patent Infringement Suit Under the AIA

2011-11-16T08:45:00.000-08:00

This was just a matter of time, but a new multi-defendant post AIA patent infringement complaint was filed yesterday afternoon in Tyler. It's Pragmatus Telecom, LLC v The Neiman-Marcus Group, Inc., et.al. (6:11-cv-620). 11 defendants in all. How are they "joined"? Not entirely clear to this author that what is alleged will be enough to keep them together. There is no allegation of "arising out of the same transaction, occurrence, or series of transactions or occurrences", nor is there any pleading alleging common questions of fact as to all defendants. The only commonality appears to be common infringement of the same patent[s] and the fact that the infringement is allegedly done by use of the same software by all 11 defendants. Enough under the AIA? I don't think so, but time will tell. Stay tuned.....If you can't pull a copy of the complaint from ECF, let us know and we'll email it to you.

When is bill not a bill?

2011-11-11T06:25:00.000-08:00

This is easy, when the bill was sent out in error. From the law firm perspective this likely seems like a minor mistake; an agreement was made to do something at no charge for a good client, time on the activity is nonetheless maintained for record keeping purposes, but due to wires getting crossed at the end of the month a bill goes to the client when it shouldn't have.

Again, from the outside lawyer's standpoint, a seemingly minor error, as the client is instructed to ignore the bill and pretend it never received it. But, now, put yourself in the client's shoes and see things from their standpoint. The arrival of the bill apparently triggers a cascade of requirements, filings, recordings, etc., that can't be as simply ignored or disregarded as the outside lawyer might imagine. Call it bureaucracy , needless paperwork or what have you, to the client it's very real and has to be complied with. So at the end of the day, the minor almost insignificant mistake by the lawyer has caused the client, however unintentionally, a great deal of frustration and consternation.

So, is there a lesson here? I think so. Two really: 1) Always strive in every relationship and dispute to see things, or at least try to, from the other side's perspective; and 2) As my father preached over and over, always measure twice--if not 3 or 4 times--and cut once. Thanks Dad.

EDTX Bench Bar Conference Follow Up

2011-11-11T06:04:00.000-08:00

I've been remiss in not following up on the great conference we had at the Four Seasons in Dallas back at the end of September. As I posted previously, I was honored to be able to present a discussion, along with Greg Love of Stevens Love in Longview, on Current Developments in Venue. If you have any interest, you should still be able to find the presentation here: EDTX Venue Presentation. If that doesn't work, shoot me an email and I'll be happy to send it your way.

Marshall Judge Watch

2011-09-08T12:10:00.001-07:00

For those of you trying to keep track of the retirements from and replacements to the bench in Marshall, it now appears likely that Rodney Gilstrap will be voted out and approved by the Senate next week. Judge Gilstrap should then be ready to take his bench near the time Judge Ward officially retires, on or about September 30. More should be known about Magistrate Judge Everingham's replacement in the coming weeks.

You Say Predictive Coding, I Say Patent Infringement??

2011-08-11T21:09:00.000-07:00

As some readers may know, we at Findlay Craft have a passion for ediscovery and have helped clients and other firms negotiate their way through collections, reviews and productions for years. When we began FC we spun off the work we were doing in this area into the focused ediscovery/document review company, Level 2 Review. Since that time, Level 2 Review has grown dramatically and has expanded its work into all aspects of the law and all types of cases, investigations and requests. But there’s no question that a big part of that success has been in the area of electronic discovery in patent litigation.

So we find it a bit ironic, though not surprising, that one of the leading companies in the emerging field of “predictive coding”, which Level 2 utilizes, has—you guessed it—gotten a patent on its predictive coding technology. United States Patent 7, 993, 859 “Systems and methods for predictive coding” was touted by ediscovery vendor Recommind as giving it and its customers “. . .exclusive rights to use. . . processes for iterative, computer-expedited document review.” What do you think that phrase: “exclusive rights” has some folks a bit nervous they just might see Recommind heading to Tyler or Marshall sometime soon?? Just a thought…

For more discussion on, among other things, predictive coding and how using a cutting edge vendor—like Level 2 (shameless plug)—and the latest technology can result in a better overall review process read Technology Assisted Review in E-Discovery Can Be More Effective and Efficient Than Exhaustive Manual Review, 17 Rich. J. L. & Tech. 11 (2011).

2011 Eastern District Bench Bar Conference

2011-08-04T17:21:00.000-07:00

A reminder that the 2011 Eastern District Bench Bar Conference will be held this year September 25-27 at the Four Seasons Resort in Irving, Texas. This year the Conference is being presented jointly with the Federal Circuit Bar Association and will include welcoming remarks by Chief Judge Randall Rader. As folks familiar with the district know, the Bench Bar Conference has been growing in popularity and attendance year and after year, and this year should be no different. It will also be a sentimental one, as it will be the last Conference with Judges Ward, Folsom and Magistrate Judge Everingham in attendance as sitting Judges.

Findlay Craft is pleased to participate again this year as a sponsor and is honored to have Eric Findlay speaking on Current Developments in Venue, along with Greg Love of the Stevens Love firm in Longview. More info can be found at http://www.edtexbar.com/assets/2011brochure.pdf.

Hope to see you all there!

Summer Trials in Marshall, Texas

2011-08-02T14:45:00.000-07:00

In the past two months, Findlay Craft(FC) has helped try two patent infringement cases in Marshall, one in front of Judge Ward and one in front of Judge Everingham. These may be the last cases that we try in front of either Judge before their retirement. On a personal note, they both tried great cases and will be greatly missed.

Both cases came out extremely well for our clients, with primary kudos and thanks to Jim Brogan and Wayne Stacy and their team from Cooley in the Mondis v Innolux case and to Doug Lumish and Jeff Homrig and their Kasowitz team in the Convolve v Hitachi case. Working closely with both teams, Eric Findlay at FC did voir dire in both cases, conducted the cross examination of the plaintiff in Mondis and put up an important prior art witness. In the Convolve case, Eric put up multiple Hitachi witnesses and presented their damages expert.

Thanks also is due the FC support staff for tireless work away from home and office and many sleepless nights. Trials are what we do and it's what we love. And when the results are what you hoped for, it's even better.

EDTX Pro Hac Vice Fees Increase

2010-04-20T12:02:00.000-07:00

Effective April 19, 2010, the pro hac vice admission fee to practice before the United States District Courts for the Eastern District of Texas increased to $100 per application.

Proposed Amendments to Local Rules in EDTX

2010-02-22T16:46:00.000-08:00

February 22, 2010

The United States District Court for the Eastern District of Texas has published proposed amendments to the Local Rules. They are available for public comment by the close of business March 12, 2010. The amendments can be viewed at http://www.txed.uscourts.gov/Rules/GeneralOrders/2010/GO-10-01.pdf

EMPLOYERS: LET ME INTRODUCE YOU TO GINA

2009-11-24T07:28:00.000-08:00

Brian Craft

On November 21, 2009, Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) took effect. Under this provision, it is illegal to discriminate against employees or applicants because of genetic information. Similar to other nondisrimination statutes, GINA prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other covered entities, and strictly limits the disclosure of genetic information.

GINA applies to employers with 15 or more employees and is enforced by the Equal Employment Opportunity Commission.

To learn more, give us a call at 903-534-1100.

COUNTDOWN TO RULE CHANGES

2009-11-20T07:22:00.000-08:00

Brian Craft
November 20, 2009

December 1, 2009 brings new changes to the Federal Rules of Civil Procedure. Of interest to most practitioners is the change to Rule 6 in counting days to meeting deadlines. No longer will you need to be concerned about whether to exclude weekends and holidays when a response date is eleven days or less. Now, when calculating deadlines you count every day, including intermediate Saturdays, Sundays, and legal holidays. You still do not count the day of the event that triggers the period. And, if the deadline falls on a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.

The Rule change also defines “Last Day” for purposes of filing. For electronic filing, the last day ends at midnight in the court’s time zone. For other type filings, the last day ends when the clerk’s office is scheduled to close. However, in the Eastern District of Texas, all filings are required to be made electronically unless you are filing pro se.

Changes will also be seen to motion practice deadlines. With limited exceptions, the written motion and notice of the hearing must be served at least 14 days before the time specified for the hearing. Supporting affidavits must be filed with the motion and any opposing affidavit must be served at least 7 days before the hearing, unless the court permits otherwise. Times for filing and responding to motions for summary judgment have been changed. A party can move for summary judgment at any time until 30 days after the close of all discovery. An opposition to a motion for summary judgment must be filed within 21 days after the motion is served, and a reply may be filed within 14 days after the response is served. NOTE, HOWEVER, THAT THE EDTX LOCAL RULES PROVIDE FOR DIFFERENT DEADLINES ON MOTION PRACTICE AND WILL CONTINUE TO GOVERN UNTIL THE LOCAL RULES ARE CHANGED.

More time is also given to file a motion for new trial. Prior to December 1, you had 10 days to file your motion. After December 1, you will have 28 days after the entry of judgment to file your motion for new trial.

Answering a complaint in federal court will also change. An answer will be due 21 days after being served (as opposed to the current 20 day deadline). If a Rule 12(b) motion is filed, the responsive pleading will be due within 14 days after notice of the court’s action on the 12(b) motion.

These and other changes to the Federal Rules of Civil Procedure will be effective December 1, 2009. You can access all the rule changes at http://www.uscourts.gov/rules/index.html . Or give us a call at 903-534-1100.