Judge Real Enters Default Against Infringement Defendant for Discovery and Other Abuses

On December 1 in United Construction Products, Inc. v. Tile Tech, Inc. Judge Real of the Central District entered terminating sanctions — default judgment admitting patent infringement, inducement, and more — and found a case exceptional.  Among other things, the judge found that defendant’s counsel, among other things, missed pretty much every deadline, made misrepresentations to the court about meeting deadlines, and more.

No, this sort of conduct isn’t common in federal litigation (to this degree), but terminating sanctions are rare.

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

7 thoughts on “Judge Real Enters Default Against Infringement Defendant for Discovery and Other Abuses

  1. 2

    It does read that way, doesn’t it? Sadly today I stumbled on a four more similar cases.

    I don’t see how it could be unethical or inappropriate for a judge to say “I’m running out of patience and if this persists, I’ll revisit sanctions…”

    1. 2.1


      Is there any indication just what parties and/or their counsel are thinking. Are counsel in over their head?


          They don’t like the offending party for whatever reason. Judge lets them build the record and then slams them with fees or sanctions. It’s the easiest way for a judge to punish a party without it looking like bias. Unfortunately, lots of time and money gets wasted when judges don’t warn counsel early and often if they see something.



            I can’t say it can’t happen, but that seems like a rather jaundiced view of Federal judges. Also, that approach would prolong the proceedings. I was under the impression that judges like to clear their dockets as quickly as possible. Others, including you, may know more than I.

            I heard tell once that in the old old days, patent litigation was mostly run by patent attorneys who could often obtain early settlement. Nowadays, non-technical litigators are in control, especially of the small cases where there are no patent attorneys on the staff of the litigation firm. Unfortunately, defensively, litigators insist a patent case is just like any other and they can handle it. This may be part of the explanation for patent cases gone bad. Someone should make a study of outcomes with active patent attorney involvement or not.

  2. 1


    If you will pardon the hackneyed phrase, this was a slow motion train wreck. Would it have been ethical for the judge to advise defendant’s counsel that this will end badly if they don’t get their act together?

Comments are closed.