Judge Fitzwater’s denial of the motion to dismiss found that the claims of direct and indirect infringement are supported by the following pertinent facts alleged in the amended complaint:

• Direct Infringement –
  • Defendant produces and sells using an infringing method (the Court noted the method was fully described in the complaint);
  • Defendant either uses or directs, controls, or instructs a third party who uses every element of the infringing method;
  • Defendant describes and advertises the accused method on its website; and
  • Defendant has actual knowledge of the patent at issue.

• Inducement of Infringement –
  • Defendant uses or sells methods claimed in the patent at issue in the accused application or directs or controls third parties who perform the claimed method; and
  • Defendant has actual knowledge of the patent at issue and continued to sell its infringing application willfully.

• Contributory Infringement –
  • Defendant sells a product, method, or system that is a component designed for use in the infringing manner; and
  • Defendant has sold software tools and instructions to aid in the use of the application.

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(a) For opposed motions filed through the ECF system, the 3-day extension does not apply; and

(b) For pleadings other than opposed motions (e.g., answer/reply to counterclaim, etc.) that are served through ECF, the 3-day extension does apply.

The rules of civil procedure that must be considered when determining whether the 3-day Mailbox Rule applies include:

NDTX LR 7.1e – “Time for Response and Brief. A response and brief to an opposed motion must be filed within 21 days from the date the motion is filed.”

FRCP 6(d) – “Additional Time After Certain Kinds of Service. When a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the period would otherwise expire under Rule 6(a).”

FRCP 5(b)(2)(E) – “… sending it by electronic means if the person consented in writing – in which event service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person to be served …”

The key distinction in the N.D. Texas is that the deadline for response set forth in LR 7.1e is based upon “the date the motion is filed” and not calculated from the date of service. Accordingly, for an “opposed motion” filed in the N.D. Texas, the response and brief must filed within 21 days of filing and no 3-day extension should be added.

Notably, however, LR 7.1e only refers to an “opposed motion” and does not refer to other pleadings requiring a response, such as an answer/reply to counterclaim. Since no other Local Rules appear to address this issue, the 3-day Mailbox Rule of FRCP 6(d) should apply.

Practice Tip – If there is ever any doubt regarding whether the 3-day extension should apply, the best practice is to ignore the Mailbox Rule and to assume that the extra 3 days should not be applied when calculating the deadline for response.

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New Local Rule 3.3(a) sets forth the basic notice requirements when filing a complaint (or removing a civil action from state court) that has a “related case.”  Local Rule 3.3(b) defines what constitutes a “related case.”  Local Rule 3.3(c) establishes that a failure to provide notice of a “related case” constitutes a certification by the plaintiff (or removing party) that no “related cases” exist.

Local Rule 81.1 sets forth the required form of documents to be filed upon removal of a civil action from state court.  Specifically, Local Rule 81.1(a)(3) has been amended by inserting a new requirement – “if there is a ‘related case,’ as defined by LR 3.3(b)(3) or (b)(4), a notice of related case that complies with LR 3.3(a)” must be filed with the clerk when removing a civil action from state court.

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