13 thoughts on “Happy Holidays Everyone!

  1. 5

    I really dislike judges who behave like this, but this type of arrogance seems to be a tradition for judges in the Southern District of Texas. Lawyers uninvolved in this case may chuckle and express some degree of schadenfreude at seeing a judge call out the sides like this, but it’s inexcusable judicial conduct that, for a state court judge, might warrant an admonishment or censure. Because if you actually pull the letters the order responded to (I did; there are two of them, filed 12/11/2018, on by each side), the letters aren’t “whiny” at all. They were single-page letters raising three very distinct and typical issues that arise in patent cases after close of fact discovery about undisclosed witnesses and the ability to supplement damages expert opinions. The letters were to-the-point and didn’t contain any of the ad hominem attacks typical of discovery gripe letters.

    1. 5.2

      Thanks LR, but is “this type of arrogance* seems to be a tradition for judges in the Southern District of Texas” consistent with ED TX having been the overwhelmingly favorite district for patent owners to sue in, until the Sup. Ct. revived the patent venue statute?

      *general refusal to consider pre-trial motions, counting on pre-trial settlements or such issues becoming moot by trial? Also, this Order is clear that the Judge had been aggravated by prior papers of these parties, not just the last two.

      1. 5.2.1

        I don’t understand your point, Paul, about T.C. Heartland. This case was filed in February 2011 in S.D. Texas, long before T.C. Heartland (and before even the AIA).

        The judge’s annoyance does not appear to have any basis in prior filings or anything the parties appear to have done; if you pull the docket it’s remarkably thin. Not that many disputes at all. The judge’s frustration was more likely attributable to the fact that the case had not settled notwithstanding it being the victim of almost eight years of judicial neglect.


          The first point was simply that if the E.D.TX docket management was really that bad it would not have been the favorite docket for patent owners [until the venue change made that much less possible].

          “Almost 8 years of judicial neglect?” From the complaint date to this date late and case status? There should have been very-much-earlier discovery and trial date deadlines unless there were serious delaying efforts by parties. Not at all typical.


            Yes, suit was filed in 2011. The only patent suit not settled or tried after 8 years that I was ever personally aware of was in N.D.IL before their docket records were computerized. As soon as they were, that case automatically rose to the top of the pendency docket, and a status call by the judge [with presumed strong arm twisting] quickly led to a settlement.
            I’m sure that a few modern patent suits that old may still be around, even discounting remands, but it does not look good for a Federal Judge to have cases that old still on their docket, and thus getting tough on attorney time extension motions should be expected.


              These are the dental retainer people. Threatening their competitors with junk patents is an existential thing for a lot of these cr@ p companies. They don’t have the talent or know-how to compete without the patents, and at the same time their patents uniformly s*ck. Cr@ppy people, cr@ppy patents.

  2. 4

    Not to comment on this particular case*, but this kind of harmful judicial reaction and greatly increased cost to a client can happen when wimpy G.C.’s fail to cost-control certain types of law firms that will otherwise file endless papers and objections to papers of others for endless unnecessary squabbling and billing opportunities.

    *albeit curious about an apparent I.D. of 167 potential trial witnesses?

    1. 4.1

      I agree with the sentiment, but this case doesn’t illustrate that part. The docket spans almost eight years and the parties appear to have done little for the vast majority of the lifespan of the case. I suspect there were months or even quarters of little or no billing.

      The 167 witnesses was a red-herring. The party who made that disclosure represented that there were only three new people who might be trial witnesses, who hadn’t been deposed. So just depose them and you’re done.

  3. 1

    Had to check my calendar to make sure that it was not April 1, 2019 already.

    Maybe file this under: “Indulgences better left untaken.”

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