Judge Pechman Denies Request for Relief from Scheduling Order

Based on my site data, a lot of you are looking for information on how certain judges in the Western District may handle scheduling in a patent case. I've posted here and here on patent scheduling orders used by Judges Zilly and Robart. Here is a post from a case currently pending before Judge Pechman, WizKids Inc. v. Wizards of the Coast (07-809). This case involves US pat. no. 7,201,374 for a "Method and Article of manufacturer for Collectible Game." The patent is owned by Wizards of the Coast, who was sued by Wizkids in a declaratory judgment action alleging non-infringement and invalidity of the '374 patent. Judge Pechman issued a scheduling order setting forth deadlines for (among others) claim construction briefing, preliminary contentions concerning claim construction, and a Markman hearing (attached below, PDF). Declaratory Judgment Plaintiff Wizkids asked for relief from this order, contending that the court did not need to engage in complicated claims construction to hear its motion for summary judgment on the issue of invalidity. Judge Pechman disagreed. From the order denying leave to file an early summary judgment motion:

"Plaintiff claims support or this departure from the case schedule from a recent Supreme Court case which held '[w]here, as here the content of the prior art, the scope of the patent claim, and the level of ordinary skill in the art are not in material dispute, and the obviousness of the claim is apparent in light of these factors, summary judgment is appropriate.' KSR Int’l v.Teleflex Inc., ___ U.S. ___, 127 S.Ct. 1727, 1745-46 (2007). Plaintiff wishes to file a motion seeking summary judgment on grounds of obviousness based on prior art. Plaintiff’s argument (and its reliance on KSR) is valid only if the scope of the patent claims and the level of ordinary skill of the art are not in dispute. Plaintiff argues that they are not, but the argument and the evidence are not persuasive. . . . It is apparent from the parties’ pleadings that claim construction will assist in the determination of obviousness. Both the correspondence which they exchanged prior to initiation of the lawsuit and the arguments regarding construction of claim terms in their briefs are evidence that the scope of the claims here is still in dispute. Furthermore, the discovery process has just begun and no depositions (including those of Plaintiff’s game experts who are testifying as to the 'ordinary level of skill' required in this matter) have been taken."
WizKidsOrderLeavetofileearlySJ.pdf
wizkidspechmanschedulingorder.pdf
WizCoastsClaimsContentions.pdf

Judge Leighton Dismisses Patent Case for Lack of Personal Jurisdiction

I'm beginning to wonder whether specific personal jurisdiction in the Western District of Washington can ever exist over an out of state defendant in a patent case. Perhaps it's too early to call this a "trend," but Judge Leighton's recent decision (November 2, 2007) dismissing a DJ complaint under Rule 12(b)(2), The Campbell Pet Co. v. Theresa Miale, (C07-5375 RBL) follows closely after a similar ruling by Judge Zilly in October, High Maintenance Bitch v. Uptown Dog Club, Inc. (C07-0888 TSZ).

In both cases, Defendants sold products within this judicial district, and both operated interactive web sites where people from Washington could purchase those products. The Campbell Pet Co. case involved a complaint for declaratory judgment that US Pat. Nos. 6,199,508 and 6,230,622 were invalid and not infringed by Campbell's sale of certain mobile folding stretchers for transporting injured animals. The accused products in Campbell Pet Co. were all made and sold in Vancouver, Washington. Further, over 40 people were employed by Campbell in Washington. No doubt these people were selling items in Washington accused of infringing both patents in suit. The existence of a reasonable apprehension of suit concerning these items was apparently not challenged by the Defendants, i.e., they did not deny the fact that they had accused a Washington company of infringement, and that these accusations placed a cloud of infringement over the products made and sold by Plaintiff's 40 Vancouver-based employees. Indeed, some of the accusations giving rise to DJ subject matter jurisdiction were carried out by the Defendants in person at a trade show in Seattle. Apparently threats of infringement were made directly to the plaintiffs, and then again to the trade show's organizer. Again, all of this happened in Seattle.

In dismissing the complaint for lack of personal jurisdiction, Judge Leighton's opinion focuses on the complaint's challenge to the validity of the patents, and reasons that the "sporadic sales and marketing of [Defendant's] products in the State of Washington has no nexus with the validity of the patents at issue." Of course, focusing on the sales of Defendants into Washington may be only tangentially relevant to the personal jurisdiction inquiry where the claims arise under the Declaratory judgment Statute. When claims are in the nature of declaratory judgment, the suit "arises from" or is most related to the threat of infringement. Defendant's sale of products into Washington should be of lesser importance to determine whether the exercise of jurisdiction over Defendants comports with due process. The transaction giving rise to the complaint most certainly occurred in Washington, and this should have been given some weight by the Court in my view.

complaintcampbellpetco.pdf
OrderDismissCampbellPet.pdf