Tesco Corp (Plaintiff) v. National Oilwell Varco (Defendant-Appellee) v. Glen Ballard & John Luman (Interested Party – Appellant) (Fed. Cir. 2015)
Interesting case here – Jury verdict for the patentee, but in post-verdict motions S.D. Texas Judge Ellison dismissed the case with prejudice as a sanction against the patentee plaintiff for litigation misconduct. The Judge found that Ballard and Luman had directly lied to the court about the origin of a critical element of prior art. The Judge wrote:
Not every lawyer who lies to a court will be caught, so when such deliberate and advantage-seeking untruthful conduct is uncovered, the penalty must be severe enough to act as a deterrent.
While an appeal of the dismissal was pending, the parties settled “all outstanding issues.” That settlement agreement was signed both by representatives of the parties and the attorneys. However, Ballard and Luman decided to pursue the appeal further – arguing that the reputational harm from the district court opinion justified continued jurisdiction. The Federal Circuit disagreed – finding “no remaining case or controversy.”
Although Ballard and Luman have not been able to defend themselves in court, they will likely get their chance to do so before the Texas Bar. Apparently, they cannot do so publicly because the records are privileged and their former client Tesco will not allow their disclosure.
The majority opinion here was written by Judge O’Malley and joined by Judge Chen.
Writing in dissent, Judge Newman argued that the lawyers should be able to defend their reputation since it is their “most valuable asset.” The basic argument from Ballard and Luman is that the “sole evidentiary basis” for their bad faith is post-trial testimony from the creator of the asserted prior art and, according to the Attorney’s, that post-trial testimony was different from what he had said years earlier. The district court had disagreed with that characterization.
Brief on Point: TescoAttorneyArg