The recently concluded (and now appealed) Gardner v. Toyota Motor Corporation patent case offers yet another important lesson in the pitfalls of missing case schedule deadlines. These deadlines inundate patent litigation, especially with the advent of many local patent rules.
Even the best substantive points and arguments can turn sour when they are brought by procedurally tardy litigants. Arguing that “we really did try to make it” does not play well to a federal court audience, even if Carole King’s song “It’s Too Late” topped the Billboard record charts in 1971.
The plaintiff, Conrad Gardner, is the inventor of U.S. Patent No. 7,290,627, entitled “Extended Range Motor Vehicle Having Ambient Pollutant Processing.” His case did not start out its life on a judge’s troublesome list, but it appears to have ended there. If anything, Gardner’s patent claims had some very sympathetic hallmarks for a case venued in Seattle federal court. Gardner is in his mid 70s. In addition to being a former Boeing engineer, Gardner is a patent attorney and former patent examining attorney for the United States Patent and Trademark Office (USPTO). Surely, he knows the ropes of patent prosecution.
The ’627 patent covers hybrid vehicle technology for automobiles. More specifically, the patent “relates to the use of an internal combustion engine and separate electric motor for powering a hybrid vehicle.” View Order Gardner filed his patent lawsuit in 2008 claiming that Toyota’s Prius, Camry and two-wheel drive Highlander automobile models infringed the ’627 patent.
The numerical imbalance (2 vs. 6 attorneys) between plaintiff and defense counsel did not seem that overmatched when the case was first filed. In addition to the plaintiff being a patent lawyer and former patent examiner, Gardner was represented by out-of-state patent counsel and a solo practitioner with extensive commercial litigation experience. Five attorneys from the well-known Finnegen Henderson law firm entered appearances on behalf of Toyota, as well as a local counsel from a Seattle law firm.
So, how did the case unravel for Gardner? A perplexing inability to meet case schedule deadlines provides an atmospheric explanation. Much of Toyota’s consternation stemmed from Gardner’s tardy submissions with respect to simultaneous filings often required by local patent rules, e.g., proposed claim element terms for construction and disclosures of extrinsic evidence and responsive claim construction briefs.
Delays in filing simultaneous submissions can lead to a tactical advantage for the late filer—as Toyota would convincingly argue. Gardner’s counsel appeared to make a habit of granting himself one more day to work on these “simultaneous” submissions. It’s always nice—but certainly not fair—to know where the other side is coming from when preparing your so-called simultaneous submission.