Teaching moments in Texas. Trial guidance from Judge Gilstrap and guidance on infringement complaints.

 

SPEAKERS

Wayne Stacy, Michael Smith

 

Wayne Stacy  00:00

Welcome, everyone to the Berkeley Center for Law and Technology's Last Week in Texas podcasts. We're here again with Michael Smith. And Michael has a whole host of I think what he described as teaching moments for us this week. So Michael, thanks for joining us.

 

Michael Smith  00:17

Well, thank you for having me. Wayne, it's it's certainly been a fun week. And it is the last week in Texas because the whole state shutting down tomorrow for our winter winter storm. So maybe you'll see us next week. Maybe you won't.

 

Wayne Stacy  00:31

After spending my life growing up in the panhandle of Texas, I'm not sure that a Marshall winter storm scares me, but I understand freezing rain. Well, so Michael. We're talking about teaching moments and things that loggers do for themselves and to themselves. You want to start with motion for leave to amend invalidity contentions.

 

Michael Smith  00:54

Yeah, we talked about one of these motions last week. And fortunately, we came up with two more orders on this out of martial this past week on motions for leave to amend infringement contentions and invalidity contentions. And let me start with the invalidity. Here the defendant was seeking leave to supplement with some additional information that it obtained from third party subpoenas. It was limited to background and support for systems that were disclosed in the original contentions and the plaintiff probably shouldn't have oppose this one. Judge Gilstrap agreed that the definitive been diligent in supplementing, and that the delay was just caused by the inevitable time necessary for third parties to respond to subpoenas and provide nonpublic information regarding prior art systems. So there's an order saying, yes, you can amend your invalidity contentions to add the things that you get through discovery. We had another case out of the Marshall courthouse last week where Judge Payne ruled on a plaintiff's motion for leave to amend its infringement contentions. And the interesting thing here was, it was just one document that was received from a third party and the defendant was was claiming this is only important if the original contentions are wrong, and they have to change to save their case. I mean, very theatrical objections which the judge was very receptive to, but the teaching moment here is not just don't be a jerk when a party wants to amend. But it was that the defendant hadn't explained how it was prejudiced. The plaintiff noted the defendant hadn't asked to brief additional terms or construction hadn't said we need to go back and need to change terms or constructions or anything else. So the defendant complained about the amendment, but they were given an opportunity to show prejudice, and they didn't. So that's kind of a double lesson there. Number one, make sure the record is clear that the other side is not providing something short of striking the contentions. And number two, don't be a jerk.

 

Wayne Stacy  02:59

Well, Michaels, we move on there was Judge Gilstrap had a motion to dismiss against direct and indirect and willfulness. It was just a big motion.

 

Michael Smith  03:10

Yeah. And and we see those a lot at the beginning of cases. And I mentioned this because it's a good case for the marshal judges 26 standards on when you've adequately pleaded direct and indirect infringement. In fact, earlier this morning, I was reading the same kind of order by Judge Albright in Waco that we'll probably talk about next wee