N.D. Cal New Disclosure Rules

disclosureBy Dennis Crouch

The N.D. California Court has amended its local rules used for patent infringement cases. [patent_local_rules_1-2017]. One of the most interesting change is the required “damages contentions.”

Initial Case Management: The parties shall provide the court with a non-binding, good-faith estimate of the damages range expected for the case along with an explanation for the estimates. If either party is unable to provide such information, that party shall explain why it cannot and what specific information is needed before it can do so. Such party shall also state the time by which it should be in a position to provide that estimate and explanation. . . .

Damages Contentions Within 50-days of Invalidity Contentions: Identify each … category[] of damages it is seeking for the asserted infringement, as well as its theories of recovery, factual support for those theories, and computations of damages within each category, including: 1. lost profits; 2. price erosion; 3. convoyed or collateral sales; 4. reasonable royalty; and 5. any other form of damages. (b) To the extent a party contends it is unable to provide a fulsome response to the disclosures required by this rule, it shall identify the information it requires.

Responsive Damages Contentions within 30 days: [E]ach party denying infringement shall identify specifically how and why it disagrees with those contentions. This should include the party’s affirmative position on each issue. To the extent a party contends it is unable to provide a fulsome response to the disclosures required by this rule, it shall identify the information it requires.

Early damages contentions has been pushed by former Chief Judge Rader for several years, with the intent of ensuring proportionality in litigation.  The basic idea is that cases worth lots of money justify more ‘lawyering’ and thus may be tied to reasonable attorney fees collected in exceptional cases.  The German approach is something like this.  Of course US legal tradition does not require defendants (or plaintiffs) to settle cases and traditionally does not penalize them even when the lawyer fees exceed any expected payout.

In general, I would expect that patentees will continue to take steps to avoid N.D. California for filing its patent cases.  However, that option will be severely limited if the Supreme Court tightens patent venue in the pending TC Heartland case.

43 thoughts on “N.D. Cal New Disclosure Rules

  1. Drumpf: ‘If something happens blame’ the judge

    Some patent attorneys actually voted for this disgusting fraud. And bragged about it! And still defend him.

    Surprising nobody, it’s the same bunch of patent attorney who bend over backwards to dig up “constitutional” issues so that as many of the junkiest patents ever granted in the history of the world remain as valuable as possible. After all, everything is all about their wallets and their sweet, sweet money-s0aked dreams.

    I wonder how hard Drumpf and his r@ cist s0 ci0 path cabal of incompetents are going to be working to make sure that “something happens.”

    After all, it’s not like we haven’t seen this performance before. Some of us weren’t born yesteday …. The Chimperor was “on vacation”, as I recall, when the memos about a hij@cking threat were delivered.

    But, hey, nothing could be better for patents than a good old fashioned war amiright?

    1. Still waiting for habitual constitution-humpers to make a tiny peep about “the rule of law” when it cuts against the r@ cist authoritarian cheet0h’s agenda.

      But that’s not going to happen, is it?

      LOL

      Of course it’s not.

      1. “Still waiting for habitual constitution-humpers to make a tiny peep about “the rule of law” when it cuts against the r@ cist authoritarian cheet0h’s agenda.”

        The lawl is very clear, only the pressy determines which aliens are not admitted, and for what period of time (although the congress could do it also by changing the lawl). If you haven’t yet read the pertinent lawl you should go ahead, since you’re a lawlyer and all.

    2. “After all, everything is all about their wallets and their sweet, sweet money-s0aked dreams.”

      MM is still suffering under the delusion from 40 years ago that everything is about money. Back when culture, society, etc. were still fairly set in their existence and not under direct, literal, and explicit assault.

      No, kind lefty sir, they have a dream of a vaguely western society still existing in 50 years time. The money is all good and all that, but that’s very much so on the side.

    3. “I wonder how hard Drumpf and his r@ cist s0 ci0 path cabal of incompetents are going to be working to make sure that “something happens.””

      You ready for the false flag?

      “good old fashioned war amiright?”

      We’re already at war. Who do you think he wants to war with now? Mehico?

  2. Kjell Magne Bondevik … was held for an hour after customs agents saw in his diplomatic passport that he had been to Iran in 2014. Bondevik said his passport also clearly indicated that he was the former PM of Norway.

    Remember: the rich white greedy patent maximalists who voted for Der Trumpenfuhrer lose their snowflake minds when the Examiner doesn’t read and examine their entire specification.

    But their very serious people! Totally not a bunch of self-dealing hacks who don’t give a shirt about anyone else.

      1. “anon”, are you still denying the correlation between vociferous patent maximalism and Trmpism?

        Please make me laugh and say yes.

        1. I am wondering when the patent blog owner is going to change your hcopyright by-line, since your plainly evident political rants and feelings do not belong on a patent law forum.

  3. A convoy of military vehicles flying a Trump flag last weekend in Kentucky belonged to a Naval Special Warfare unit, according to multiple reports.

    Swirl, swirl, swirl down the t0 ilet, United States.

  4. Over 100,000 visas have been revoked as a result of President Trump’s ban

    Nothing like some transparent ethnic cleansing so diaper-wetting patent attorneys like Ned Heller can sleep better at night.

    Meanwhile, my brown family members and friends get the shaft.

    Small price to pay, right? And besides: everything will be so great once we get rid of that mean old Chinese woman at the PTO. G e n e, Paul and little Stevie told us so! Of course, we can rest assured that at least one of those patent maximalists also voted for the ethnic cleansing. Because “jobs!” And Hillary gave speeches to Goldman Sachs.

    But we’re not supposed to talk about this stuff. Dylann Roof might have a sad.

    1. “ethnic cleansing”

      Nobody actually left the country.

      “This is consistent with a position declared by Secretary of Homeland Security John Kelly on Sunday that green card holders would be spared from the Muslim ban. During the case, government lawyers also said that the Muslim ban would not be applied to “lawful” residents.”

      See? MM’s panties getting twisted was for nothing. But I’m sure MM will find a reason to twist them up again, oh wait, now it’s “ethnic cleansing”.

    2. “Meanwhile, my brown family members and friends get the shaft.”

      I’m sorry to hear about them “getting the shaft”, would you like to share your personal story about how, specifically, they are shafted?

      1. I’m sorry to hear about them “getting the shaft”

        Of course that’s not true.

        would you like to share your personal story

        Because it’s soooooo hard for a r@ cist to wrap his head around the fact that a white guy could have some brown family members affected by Der Trmpenfuhrer’s r@ cist policies.

        Keep the laughs coming, 6! Is America great enough for you yet, or are there still not enough rich white s0 ci 0paths in power taking a cr@p on everybody else? Let use know. You’re a very serious person after all.

        1. You v0m1tted back a “so serious” non-reply when 6 inquired as to the particulars of your claim.

          Sounds like you were just making that line up and responded in ang.., er, with “feelings.”

          Nice job Putz.

          1. you were just making that line up

            Again we have to ask: what kind of weird bubble do the patent maximalists live in? Predominantly rich white wealthy Republik kkan men with a powerful sense of entitlement … and really paranoid. We figured that one out a long time ago, before anyone else was willing to talk about it (cue up the hypocritical whines about “political correctness” <–LOL).

            But how far up your behind do you have to stick your head to have trouble accepting that — in 2017 — some other white guy living in an incredibly diverse metro area might have family and friends from one of those "bad" countries?

            Then again, the trademark of the patent maximalists is to keep as much distance between their bizarre beliefs and reality as possible. That's also been true for a long time.

            1. “But how far up your behind do you have to stick your head to have trouble accepting that — in 2017 — some other white guy living in an incredibly diverse metro area might have family and friends from one of those “bad” countries?”

              I don’t think he means that you’re making up that you have fam/friends from the bad countries. He means that we’re not just yet convinced of them “getting shafted” due to a large lack of details. What we see, from outside your myopic view, is a mere temporary restriction the same as has happened many many times in this country’s history.

                1. Remember folks: “anon” once asserted here that he “h@ ted” Der Trumpenfuhrer.

                  I hope nobody was naive enough to believe that.

                2. Once again you (purposefully) confuse my taking a knock on YOUR inanity with something else.

                  You really that full (or f00l) of yourself ?

              1. we’re not just yet convinced of them “getting shafted”

                LOL

                What we see …. is the same as has happened many many times in this country’s history.

                LOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOL

        2. I’ll take that as a no, you would not like to share your story. I did not imply that you don’t have brown fam members or friends. Indeed, I’m fairly sure that you do, what with all the caterwallin’ going on for the last few months. Probably some of them are muslims too, given your super strong feelings on that matter as well.

          1. “52% of voters think that the order was intended to be a Muslim ban, to only 41% who don’t think that was the intent. And the idea of a Muslim ban is extremely unpopular with the American people- only 26% are in favor of it, to 65% who are against it.”

            Trump promised to ban Muslims from entering the country during his campaign. But Hillary used a private email server so whatever.

          2. you would not like to share your story.

            What would be the point of sharing with Mr. “Muh Victim” any single example of what happens when wholesale discrimination is systemically launched by the government against an already suspect class?

            The damage being inflicted is exactly what Der Trumpenfuhrer’s voters want to see. It’s pretty much all that most of them care about, really. Why else could anyone with half a brain possibly pull the lever for the guy if they weren’t totally comfortable with this?

              1. false equivalency…/i>

                There’s no “false equivalency.” Your recent fixation with the phrase suggests that it’s another new one for you that you are still struggling with. That’s happened about a dozen times here in the past.

                1. Or not, as it is just another thing YOU use that you don’t understand (or care to understand) how much what you Accuse Others Of That Which Malcolm Does.

                  Your absolute number one meme in action.

                  Yay eleven years and going “strong.”

            1. “What would be the point of sharing with Mr. “Muh Victim””

              We’ll just have to see now won’t we?

              “The damage being inflicted is exactly what Der Trumpenfuhrer’s voters want to see.”

              Meanwhile 99% of Der Trumpenfuhrer’s voters don’t even know what all this supposed “damage” is because people are too hysterical to say what it is.

    3. After launching his presidential campaign by calling Mexican immigrants “r@ pists,” Donald Trump is now following up on his nativist rhetoric by taking aim at the Constitution. “[I]f you speak to some very, very good lawyers … you’re going to find [children born in the United States] do not have American citizenship.”

      Ethnic cleansing part the infinity.

    4. But we’re not supposed to talk about this stuff. Dylann Roof might have a sad.

      No one is saying that you are note supposed to talk about this stuff.

      Let’s be clear about that.

      What I am saying – and what is reflected by several of the non-Malcolm-thumbs-up-anything “cohorts” is that this patent law blog simply is not the forum for your political rants and hurt feelings.

      The by-line, by the way, is:

      America’s leading patent law source

      and not:

      “Malcolm’s personal crying towel because the election did not go his way”

      Get over yourself already.

    5. MM, it is truly hard to believe that you could believe that the reason for the temporary stay from 7 terrorist enclaves was to permit/promote genocide against brown people.

      The terrorists who dominate these areas have made it all but impossible to distinguish the friend from foe except by “enhanced” vetting. If a person seeking refuge in the United States is not a potential terrorist, he or she will be admitted given that they meet all the other criteria of a refugee.

      It is a principal obligation of any president to protect the American people – not to protect the lives and property of non-Americans. We act altruistically and protect refugees because we are human beings. But this altruistic obligation to humanity does not take precedence over the primary obligation.

      1. “MM, it is truly hard to believe that you could believe that the reason for the temporary stay from 7 terrorist enclaves was to permit/promote genocide against brown people.”

        This is what happens to the lefty estrogen soaked brain in times of severe emotion Ned. Don’t find it that hard to believe.

        “It is a principal obligation of any president to protect the American people – not to protect the lives and property of non-Americans. ”

        MM doesn’t care at all about anything like that. For them, it’s all about the less than 1 billy whiteys taking care of all 7 billy on the planet. That’s their whitey priv.

        We act altruistically and protect refugees because we are human beings.”

        Technically not true, we do this mostly because we’re the white cis hetero christian femininized patriarchy. Note what countries do this, which fund it (note it’s mostly the white cis hetero christian patriarchy and its vassal states, even though they barely produce any refugees in modern times) and etc. Though we would do it some if we were just merely human, we wouldn’t do it nearly as much as we do.

        “But this altruistic obligation to humanity does not take precedence over the primary obligation.”

        It most certainly does in every single lefty’s mind. More than half of them don’t even understand that us taking in refugees is a literal hand out. They literally cannot grasp that we do it mostly because we’re the white cis hetero christian patriarchy, and half of them cannot stand that we do it for this reason. And that is because they h ate the white cis hetero christian patriarchy, you know, because it does evil things like take care of/resettle the majority of refugees, tolerate welfare states, and oh, is RAYCYST, ist ist ism ism etc. totally unlike any other nations/civs on earth.

  5. Do you think they actually looked up the word fulsome before using it? As Inigo Montoya said, “I do not think it means what you think it means.”

  6. The real problem with litigation is simple. The P can make the D do a lot of work when the patent may be invalid. I can write a complaint in less than a week and then the D has to file all their counter claims within months, which can cost millions of dollars.

    that is the problem.

    1. Night,

      Months and millions? I am not litigator but I understand that D’s answer must be filed withing 21 days of service of the complaint. Millions at this stage is way more than the AIPLA survey results. D’s answer can be a pro forma denial, although counter claims take more effort.

      Also, with the strengthening of Rule 11, exceptional cases, and Igbal/Twombley pleading requirements, P’s complaint is probably not as simple as you suggest.

      Enlighten us?

      1. I have litigated in the N.D. of Cal. You can read their local rules online (I have.) Basically, the way it works is you have so many months for your invalidity contentions—and that’s it. You get them all in upfront and it is hard to change them. That means —for example–you have to have all your prior art in upfront. The P on the other hand can do very little at the start.

        And, no, you can still spend a week and get a good complaint in especially when it is one that has been written before, and when a product is public so you can make a claim chart pretty quickly.

        So, again, the problem is that the P can do very little up front and the D has to do a whole bunch. I guess it does some from the presumption of validity of the patent.

        I don’t know how to fix it. I suggested that the D can bifurcate as a matter of right the infringement and invalidity portions of the trial.

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