February 2 Marshall/Tyler Patent Scheduling Conferences & Larger Filing Trends

The most recent batch of bimonthly patent case scheduling conferences was held earlier this week in Marshall, and as usual I have a brief rundown of the results compared to the last conference at the end of November, as well as the ones in September and July for longer term trends.
I am also comparing the results to the cases heard a year ago, since that tells us a lot about filings trends and how they’re affecting the docket.  The trend also bears some relating to recent data from other sources that I thought might be of interest.

Standards for Motions to Vacate Entry of Default and Default Judgment

Last month I mentioned a law professor of mine telling me that the thing that lawyers are most interested in learning about federal court is how to get out, hence the interest in standards for removal and remand.  It turns out that’s not exactly true – they are actually even more interested in the standards for setting aside default judgments (which includes the subsidiary issue of setting aside the clerk’s entry of default. This case by Judge Mazzant is not the freshest egg in the drawer, but Westlaw apparently just decided that it needed publishing, and after all, ten months is not such a long time.  So here are the standards you need if you find yourself in this very uncomfortable situation.

Andrei Iancu Confirmed as USPTO Director

The U.S. Senate confirmed Andrei Iancu as USPTO director earlier this week in a 94-0 vote.

Several years ago Andrei and I were on a panel in Dallas discussing EDTX patent juries, and he also authored an article on the real reasons the Eastern District of Texas draws patent cases – which he discussed at length during our panel discussion.  I thought subscribers might be interested in the transcript of the former, and a copy of the latter, so I have attached copies below.

Congratulations, Andrei – we’re glad to have you in place.  Now fix everything.

Beyond Gilstrap: 5 Judges To Watch In Patent Litigation – Law360

Yesterday’s release of the Lex Machina 2017 patent litigation survey was accompanied by numerous articles based on its data, since LM typically releases embargoed copies of their report to news outlets (including me) ahead of time.

One of the more useful articles I saw yesterday was on Law360 by Matthew Bultman Beyond Gilstrap: 5 Judges To Watch In Patent Litigation, and I thought it deserved some brief analysis.

Motion Trends After TC Heartland: What’s the Relief When Venue is Improper?

Lex Machina’s 2017 patent litigation year in review which is out today, says that “[w]hile the odds of success in E.D. Tex. for a motion to transfer filed prior to TC Heartland were roughly even, afterwards the grant rate increased to 75%” and notes that motions decided almost doubled in the period 180 days after compared to 180 days before (Report at p. 9).  Incidentally, some of these numbers are not new – the grant rate for motions to transfer in EDTX has hovered at 50% for the past three years.  But this puts a number on both the increased numbers of granted motions, and the increased percentage of grants.

Interestingly, it notes, as shown in the above graph, that this pattern was repeated in other districts – the grant rates went from 54% (51% in EDTX) to 74% (75% in EDTX), with the only statistically significant difference being that the number of motions decided in other districts increased even more than they did in EDTX, illustrating a little-reported effect of TC Heartland – it changed the basis for venue for patent cases across the nation – not just in EDTX.

The report doesn’t distinguish between motions to transfer under Section 1404, which was by far the most common motion to transfer under 1404, and motions to dismiss or transfer based on improper venue, which were more common after TC Heartland changed the law on patent venue, but there is one important distinction between the two and that is the relief granted.  While the grant of a motion to transfer is a transfer to a district that is “clearly more convenient”, the relief on a motion to dismiss or transfer for improper venue can be transfer, or it can be simply dismissal.

This is the decision presented in a recent case where an EDTX court considered whether a case where venue was improper should be transferred, or dismissed.

Claim construction – part 2 – how are “emergency” motions and “exceptional” case status related?

You say it’s urgent
Make it fast, make it urgent
Do it quick, do it urgent
Gotta rush, make it urgent
Want it quick
Urgent, urgent, emergency
Urgent, urgent, emergency
Urgent, urgent, emergency
Urgent, urgent, emergency
Urgent, Foreigner (1981).
Ah yes, Foreigner.  Their multiplatinum album 4 was the soundtrack of my senior year in high school (Fast Times at Ridgmont High didn’t come out till late in the year) and provides the perfect entry into today’s “what not to do in a filing”.

 

Claim construction – part 1 – insufficient algorithm for means-plus-function term

I’m working on a trio of cases today, all of which deal with claim construction.  The first case includes – buried deep in a 117 page order a finding of indefiniteness with respect to a means-plus-function term that it worth analysis.  Of course any opinion of that length will also have a wealth of useful standards that serve as a snapshot of what at least one court understands to be the law as of the end of January, in the year of our Lord 2018 (actually 2011 but once upon a time there was a monk that wasn’t so strong in math, and the rest is, literally, history).