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February 21, 2008

Rocket Dockets

The Eastern District of Texas has become the most popular court for patent litigation. As a result, with stuffed docket, time to trial has stretched to about two years. Other districts are taking up the slack, notably the Western District of Wisconsin and the Eastern District of Virginia, but there is a potential drawback to the also-rans.

Rocket dockets are fueled for snappy file-to-trial - efficient litigation. Fredrick Frei at Andrews Kurth: "The rocket docket was perceived as the place to go if you wanted to put pressure on the defendant. If you are a defendant and totally unprepared - say a patent infringement suit comes out of the blue - and all of a sudden you have to do everything in a six month period, you're really disadvantaged."

Frei exaggerates a tad, but then, Andrews Kurth is not a Patent Hawk client. Patent Hawk invalidates around 90% of patents for defendant clients, putting the razor's edge to asserted patents, and leveling the playing field.

Professor Paul Janicke at the University of Houston Law Center tracks patent filings. According Janicke stats, the Eastern District of Texas had 352 filings in 2007, snatching 12.7% docket share, passing the Central District of California as numero uno. Less than a decade ago, nobody filed patent infringement cases in east Texas. That changed when Judge T. John Ward took the patent case management rules from the Northern District of California and tuned them up. Judge Ward still handles about 60% of the cases filed in Marshall, transferring the rest to others.

41 cases were docketed in the Western District of Wisconsin, making it #17 on the 2007 hit parade, and the Eastern District of Virginia at #19 with 39 filings. Last year, east Virginia was #25, and west Wisconsin wasn't in the top 25.

Multiple factors explain the popularity of the Eastern District of Texas : pro-plaintiff; experienced judges; and efficient court processes, with rules for claim construction and other procedures. Janicke smokes those with the puff that plaintiffs survive summary judgment motions and grab the loot; pro-plaintiff bias rules the roost, surmises Janicke: "You have a better chance of getting to trial in eastern Texas because they deny summary judgment and win settlements before trial." That doesn't explain why defendants don't go to trial.

Gary Hoffman of Dickstein Shapiro thinks Janicke is behind the times: "It is a much more balanced court, and, if anything, pro-defendant today. Now, the people out there blasting the court will tell it's still pro-plaintiff, but it's not borne out by the statistics." Dickstein Shapiro is a Patent Hawk client.

The drawback to west Wisconsin and east Virginia is transfer. Hoffman observed that the Western District of Wisconsin "periodically" transfers cases to other courts, while the Eastern District of Virginia "typically" shuffled off patent cases. "If a judge is going to transfer me out... it doesn't do me any good to file there. I'm going to pick some place I have a very good chance of staying in," Hoffman snapped. Frei snorted that plaintiffs are "reluctant to file [in east Virginia] because you could end up in Richmond or Norfolk or Newport News, and you may not want to be there." Those divisions are not true rocket dockets.

The Southern District of Texas is an up-and-comer, having honed its own patent rules to grease its docket.

If the Patent Deform Act becomes law, with its severe pro-defendant venue restrictions, patent litigation will become bogged down in courts ill-equipped to expeditiously handle such cases.

Posted by Patent Hawk at February 21, 2008 12:57 AM | Litigation


WDWI and EDVA "shuffle off" patent suits, and this a bad thing? Try phrasing it this way instead: they're only willing to entertain suits where there's some nexus to the suit that actually gives them jurisdiction. If the plaintiff is from Nevada and the defendants are from New York, Florida and California, WDWI and EDVA might - gasp! - say that the suit should be heard in a place to which at least one of the parties has some connection. Unlike, say, giving power to the PTO to transfer responsibility for examination from the PTO to the applicants (while still collecting examination fees), the jurisdiction provisions are one part of the proposed legislation that it would make sense to adopt.

Posted by: Dan Feigelson at February 22, 2008 4:28 AM

Thanks for the comment.

Judges accordingly exercise their discretionary authority as to which cases to take. "Shuffle off" was merely descriptive, not pejorative.

I do not agree with Dan Feigelson that statutory venue restrictions are either necessary or a good thing. Better to provide courts sufficient funds for training best practices and to expedite litigation.

Posted by: Patent Hawk at February 22, 2008 10:53 AM