Judge Rodriguez Finds ADA Case Timely

Gordon v. Acosta Sales & Marketing, Inc., No. SA-13-CV-662-XR, slip op. (W.D. Tex. Nov. 25, 2013)(Rodriguez, J.)

In this employment case, the narrow issue was whether the plaintiff received his Notice of Right to Sue Letter from the EEOC more than ninety days prior to suit, in which case   his suit under the Americans with Disabilities Act and 2008 Americans with Disabilities Act Amendments would be barred.  Slip op. at 1.  In response to the defendant’s motion to dismiss for lack of jurisdiction (which was converted into a motion for summary judgment), Gordon submitted his affidavit and the affidavit of a neighbor to demonstrate that a mail mishap delayed his receipt of the EEOC’s Right to Sue Letter  and he filed suit within the 90-day window.  Id. at 3.  The District Court determined this evidence created a fact issue and denied the motion.  Id. at 3-4.

Judge Rodriguez Issues Claims Constructions and Denies Summary Judgment in Patent Case

Kinetic Concepts, Inc. v. Wake Forest University Health Sciences, Nos. SA-11-CV-163-XR, SA-11-CV-713-XR, slip op. (W.D. Tex. Nov. 25, 2013)(Rodriguez, J.)

The case pits two long-time allies in the development and sale of Negative Pressure Wound Treatment (NPWT) products.  After licensing NPWT patents from and jointly prosecuting patent litigation with Wake Forest for nearly two decades, Kinetic Concepts changed tack.  On In late February 2011, it sued for a judgment declaring that it owes Wake Forest no royalties under the license agreement, the patents covering its NPWT products are invalid, and its products do not infringe any valid or enforceable Wake Forest patents.  In response, Wake Forest terminated the license and sued for damages.  Id. at 4.

In mid-September 2013, the District Court held hearings on Wake Forest’s motion for summary judgment of no invalidity and claim construction.

Wake Forest’s motion contended that Kinetic Concepts was judicially estopped to challenge the validity of the disputed, having urged in prior proceedings that they were valid.  Slip op. at 10.  Whether the doctrine applied hinged on (a) whether Kinetic Concepts was adopting a “clearly inconsistent” position, (b) whether a court had accepted Kinetic Concepts’ prior position, and (c) whether fairness compelled the application of the doctrine.  Id.  The District Court determined that Kinetic Concepts’ current position was not “clearly inconsistent with its prior position because the combination of prior art that it relied upon was not identical to the combination at issue in prior litigation.  Id. at 11.  The District Court determined that the second prong—acceptance by a court—was satisfied.  Id. at 13-14.  Finally, the District Court determined that offsetting fairness considerations kept the fairness scale from weighing clearly in favor of the doctrine.  Id. at 14-15.

The six terms the District Court construed were “healing,” “selected stage of healing,” “wound,” “treating,” “area of skin including and surrounding the room,” and “tissue surrounding the wound.”  Slip op. at 15-28.

Measured by time to trial, the scheduled 29 months in this case is in line with the 29.9 months in the Northern District of California, the 28 months in the District of Delaware, and the 28.4 months in the Eastern District of Texas.  See LegalMetric Time to Trial District Comparison—Patent Cases (January 2013).

Judge Rodriguez Dismisses Untimely Petition to Quash Administrative Summons

Fisher v. United States of America, No. SA-13-CV-610-XR, slip op. (W.D. Tex. Nov. 25, 2013)(Rodriguez, J.)

This opinion highlights the advantage the government enjoys by virtue of the accelerated deadlines for responding to administrative compulsory process, as compared to civil discovery.  The IRS issued a third-party summons for Fisher’s credit card records to American Express and served her by certified mail.  The summons cautioned Fisher of the need to “begin a proceeding to quash . . . not later than the 20th day after the day such notice is given.”  The District Court pointed out that a proceeding is begun by filing—not mailing—a petition, whereas notice is given on the date mailed—not the date received by the investigative target or summons recipient.  Id. at 3 (citing cases).  Since Fisher mailed her petition 20 days after the date on the summons, the petition was not was timely filed.  The District Court, therefore, dismissed for want of jurisdiction.  Id. at 4.