by: Patrick Anderson | June 5, 2017
Filing a patent lawsuit pro se is a bad idea. A really, really, incredibly, horrifically bad idea. In fact, doing so successfully is damn near impossible. However, even worse than filing a pro se patent suit is filing a pro se patent suit in the famous entertain-no-gamesmanship-and-suffer-no-fools jurisdiction of the Eastern District of Texas. The case – HUANG V. HUAWEI TECHS. CO.
This EDTx is a judicial district that once sent a lawyer to jail for violating a motion-in-limine during a jury voir dire. Unfortunately, Mr. Xiaohua Huang, an apparent Marshall, Texas resident (the complaint lists an apartment in Marshall, but he uses a California address in subsequent court filings), failed to heed the many warnings lobbed his way during his ill-conceived litigation campaign against Huawei. He now owes the Chinese wireless handset and infrastructure maker more than half a million dollars.
The real shame is that Huang’s patent claims may actually have had merit. After all, court records indicate Huawei tolerated the litigation through six months of discovery prior to finally sending a Rule 11 “Safe Harbor” letter, along with evidence that alleged that none of the products forming the basis for Huang’s claim had ever been imported into the United States. According to the federal rules, Huang had 21 days from the date of the letter to withdraw his claims essentially with no penalty. Had he done so, Huawei would most likely have eaten all of their litigation expenses to that point.
This prompted the Court to hold a hearing last July, explaining to Huang that he could not possibly prove his infringement claims for a very simple reason: all of the technical evidence required to prove infringement would only be made available to outside counsel and, of course, he had none. Undaunted, Huang claimed not to need technical discovery to prove infringement—a claim that should have already seemed suspect based on the allegations in the Rule 11 letter. Nevertheless, the Court cautioned Huang and stayed the case, giving him an additional 60 days to secure counsel. Here, again Huang could have dismissed his claims with, most likely, no penalty.
Instead, Huang continued filing motions, in apparently blatant defiance of the stay. Amazingly, Huang moved to compel production of the very evidence he was prohibited from receiving—the very evidence he, at the hearing, claimed not to need! Obviously, these motions were denied, and when Huang failed to secure counsel or dismiss the case at the conclusion of the 60 days, Huawei moved for summary judgment. In granting summary judgment (in a 2 page opinion), Magistrate Judge Payne linked Huang’s failure directly to his lack of counsel: “Given that Mr. Huang chose not to hire counsel, he has not been able to obtain information from Huawei about the accused products.”
And make no mistake. While many pro se litigants are unable to secure counsel for a variety of reasons, Huang made a conscious choice, explaining that he “decided not to hire an attorney because he did not want to share revenue with a lawyer.” (Of note, Huang disputes ever saying this to Huawei’s in-house counsel, despite it coming from a sworn declaration.) Upon prevailing at summary judgment, Huawei pursued a motion for fees under § 285. The resulting order goes into more detail about Huang’s motivations and conduct for filing the suit. According to Huawei’s sworn declaration, Huang communicated with Huawei’s in-house counsel (despite being instructed specifically to only communicate with their outside counsel) and explained that “one of his (lawyer) friends told him that if he were to represent Mr. Huang in a lawsuit against Huawei, the case would quickly settle for $1.5 million.” Of course, Huang decided to forgo hiring his friend, and refused to give up even after losing the summary judgment motion. The declaration goes on to state “Mr. Huang told Huawei’s in house counsel that he would continue filing motions—forcing Huawei to reply and incur further legal fees.”
Indeed, Huang has made good on his threats. In the face of a judgment in excess of $500,000 USD, Huang is doubling (or perhaps quadrupling) down as he has filed four separate appeals to the CAFC, which he also appears to be handling pro se, at least for the time being. There’s no telling when or where this case might draw to a conclusion, but it serves as a cautionary tale for the integrity of the court system and the judges in Marshall in particular. For his part, Huang continues to assert that Huawei’s motions are supported by perjured testimony—something that, if true, will invariably result in the court coming down on Huawei as hard or harder than it did on Huang.
All of this to say, if you plan to bring your case in East Texas, come prepared and ready to litigate or suffer the consequences.