Thursday, December 22, 2016

Motion for Early Construction of 3 Claim Terms Granted

Originally published by Michael C. Smith.

15403860_10210966587147840_4210399219604974101_oMost of my workshop projects don’t involve repetitive tasks. Whether it’s a ship, a plane, or a spacecraft – kitbashed or scratchbuilt, generally there isn’t a need to repeat a task precisely – each is slightly different.  But sometimes you run into a situation where a special tool allows you to address a recurring issue more efficiently.  

For example, the Launch Umbilical Tower (LUT) I am building from scratch for my 1/200 scale Apollo Saturn V has eighteen (18) levels, all of which are essentially identical, and all of which must be precisely leveled and aligned, or the final result will look like the Leaning Tower of NASA.  To help me avoid this problem, I made a the template or jig shown at left out of sheet plastic which can be placed at each level to precisely set the level above, and includes cutouts for various parts (elevator shaft, supports & bracing, etc.).   15621985_10211035291065395_7492295754268987378_nIt wraps around the elevator shaft like an overprotective parent, and can be pulled away once the glue has dried on the level above.

Sometimes courts find similar opportunities to achieve efficiencies in addressing repeat issues through special procedures or processes.  One such process in the Eastern District of Texas is the “mini-Markman” which was a procedure first used by Judge Leonard Davis several years ago in the Parallel Networks cases to address dispositive claim construction issues early in cases.

In that case, the 120–odd defendants argued that the plaintiff’s settlement model was based not on the merits of the case but on the cost of defense, and that the case could be resolved by the expedited construction of three terms. After hearing those arguments at a scheduling conference Judge Davis agreed, stayed all discovery in the case, and proceeded to an expedited Markman hearing on those three terms. He ended up agreeing with the defendants, and issued constructions that permitted summary judgment as to approximately 100 of the defendants.


The mini-Markman process has since been codified into a procedure that exists as a standing order, by which parties can request expedited consideration of a limited number of terms in cases where they believe that such a focused proceeding would be helpful. Judge Gilstrap has recently referenced the process in an order as well, and while it isn’t always the right tool in a case, when it is, to quote Ferris Bueller, “it is so choice. If you have the means, I highly recommend picking one up.”  (Yes, it’s been 30 years.  Can you believe it?)

Which is exactly what happened in Lexos Media IP, LLC v. Apmex, et al., 2:16cv747, when three defendants asked Judge Roy Payne for an early claim construction on the magic number of three terms appearing in the asserted claims. “Defendants allege a pattern by Lexos of serially filing groups of cases and then settling those cases before the Court has had a chance to construe the asserted claims,” Judge Payne wrote. “The Court finds that the determining the meaning of the three terms identified by defendants as early as possible may aid in the just and speedy resolution of this in future cases in which Lexos asserts the’ 102 and’ 449 patents.”


Accordingly, Judge Payne granted the request for early claim construction and ordered the parties to jointly submit a briefing schedule. The court deferred the issue of whether to stay further discovery and proceedings until it had established a workable early claim construction briefing schedule, but did observe that it did not intend the process to delay the disposition of the case.

(Ed. note: shortly after writing this post I discovered that while the LUT jig was working fine, my calculations on the size of the levels was off, requiring me to rebuild the first two levels, which as you can tell, are not simple structures.  It’s like that sometimes.  The procedure is impeccable, but the substance turns out to be crap.  But then I already knew that from practicing law.)

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today
via Abogado Aly Website

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