Two JMOLs give us a good lesson on strategy and picking your battles. And Judge Gilstrap gives us great guidance on exceptional-case motions.

 

Transcript: 

Wayne Stacy  00:00

Welcome, everyone to the Berkeley Center for Law and Technology's Last Week in Texas podcast, it is March 30. And we're here again with Michael Smith. No Baylor basketball jokes this week, Michael. So we think that that would be good. Well, thanks. Thanks for coming back after my unnecessary shots last week. Well, Michael, I'd love to start this week with a case I think that people would look at and kind of kind of laugh a little bit. But there's a lot more to it. And there was a jury award and Marshall, that might be the lowest Jury Award in Texas and a patent case, a whopping $84,000, which is roughly one trial day for a patent team. So what what's, what can we look at this case and learn? Well,

 

Michael Smith  00:52

it was an interesting case, I happened to be in the courtroom while the jury was deliberating and sending out notes. And I looked over at the plaintiffs table, and there were at least 10 lawyers there. So I don't know what was going on there. Other than this, it's a competitor case. And when it's a competitor case, you don't it's not necessarily about the money damages at the trial. It's it's it's about being able to cut the defendant off from continuing to sell a product that you think is infringing your patents. So, again, I am not focusing on the amount that the jury awarded, I'm focusing on what was being sought by the plaintiff. In that case, competitor cases are getting to be the standard. I've had four patent trials in the last year and Marshall would judge Gilstrap, all four were competitor cases, all four were a larger competitor in a field suing a smaller competitor in a field for patent infringement. And you had similar themes in all of the cases. So we're seeing a lot of that. Coincidentally, the plaintiff's lawyer in that case was my co counsel on the defense side in February, so I need to call him back and find out what happened on that case. One fun thing that happened while we were sitting there waiting to start our hearing is that the jury sent out a note saying, please send back the exhibit with the defendant sales in such and such time period so that we can calculate damages. I tried not to look at the defense table, then because I know how I feel when when a note comes like that. And you're on the defense side.

 

Wayne Stacy  02:28

Yeah, there's there's no, no positive message in that note. Oh, no. Well, well, Michael, I think that it's an interesting point. The stereotype of the Eastern District in the Western District of Texas, is that the only thing that's happening there are in PE cases, and if you use a little harsher language, you know, like some folks do, that it's just those are the two trial courts of the United States patent cases. You're suggesting otherwise?

 

Michael Smith  02:57

Well, the cases that go to trial? Yes, we had a similar case to this that went to trial a few months ago in Waco, where again, the amount that the jury awarded was bizarrely low. But when you go back and you find out what they were fighting over, it was a competitor case. I mean, going back to 1994, the first patent trial I