In 2013, the law firm of a friend of mine, Mike Heim, represented a patent owner against AT&T, and received a jury verdict of patent infringement, in which the jury awarded $40,000,000.00 in damages to their client! Of course, AT&T planned to appeal that verdict. Now, as everybody would suspect, if you plan to appeal, you carefully watch your calendar, and you are sure to file your appeal BEFORE the deadline for doing so.
Now, fast forward to March 20, 2015, at the 28th ANNUAL ADVANCED INTELLECTUAL PROPERTY LAW seminar, sponsored by the State Bar of Texas. One speaker spoke about appealing verdicts in patent lawsuits. He included the following statement in his paper: “For example, the notice of appeal from a district court judgment or order needs to be filed with the district court clerk, along with the appropriate fee, within 30 days of the judgment or order being appealed.” He did not mention that the day before, on March 19, the Federal Circuit had ruled that because AT&T had failed to timely file its notice of appeal in 2013, the jury’s verdict of $40,000,000.00 was now unappealable: AT&T must now pay $40,000,000.00!!! How did that happen? Perhaps AT&T’s lawyer was out of town, was sick, was on vacation? Perhaps he had died?
Oops! AT&T did not have just ONE lawyer on that lawsuit… It had eighteen (18) lawyers!!! Well, perhaps AT&T had missed its deadline by just one day?? The 30-day clock started running on November 22, 2013 (or perhaps, not until November 25). HOWEVER, AT&T asserted to the Federal Circuit that not until January 15, 2014, did it realize that it had missed its appeal deadline!!
In its opinion, in which it affirmed the district court’s decision to refuse to extend or reopen the appeal period, the Federal Circuit stated these AMAZING facts: (1) the electronic notices from the district court “were sent to 18 attorneys at the two firms representing AT&T”; and (2) “assistants at those firms actually downloaded copies of all of the orders onto the firms’ internal systems.” The Federal Circuit also said, “Given these circumstances, the district court concluded that it was inexcusable for AT&T’s multiple counsel to fail to read all of the underlying orders they received, or—at minimum—to monitor the docket for any corrections or additional rulings.” In affirming the district court’s decision, the Federal Circuit cited an earlier case that stated, “The judiciary is not entitled to add time just because a litigant fails to open or read his mail.”