It would take more time than I have available to reproduce and analyze all the briefing and amici filed in the TC Heartland case that’s being argued before the Supreme Court later this month, but I did want to mention one filed today by Ericsson, Allergan and Traxxas. The reason is that it provides really good current statistics on the district, including win rates, affirmance rates, and so forth, as well as a reference to the recent EDTX-free “Slowpoke Report. (And major bonus points for using “grouse” as a verb). The brief (attached) is also a good example of
Chief Judge Clark entered G.O. 17-04 on Friday updating the membership of the Court Security Committee. 17-04
The Smith County Bar Association is one of the state’s oldest, having celebrated its 75th anniversary in 2008. Tomorrow is is hosting five hours of live, local CLE in the jury room of the Steger courthouse in downtown Tyler.
Now you can’t attend, but that’s only because it sold out weeks ago – otherwise they’d love to see you. As I’ve posted on previously, I’m moderating the panel on conflicts and joining the panel on federal & local civil procedure with Wes Hill, Judge Rodney Gilstrap and Judge Trey Schroeder, and am really looking forward to both. (Okay, not so much on the conflicts, but we’ll get through it).
For a complete agenda for this program that you can’t attend, click here. I will be sure to tell you later how great it was.
The 2017 Biennial Criminal Bench Bar Conference for the Eastern District of Texas will be held on Thursday, March 9 and Friday, March 10, 2017 at The Center for American and International Law (CAIL), 5201 Democracy Drive, Plano, Texas.
For more information, including registration, click here.
G.O. 17-03 was recently issued by Judge Clark, and provides the standard conditions of supervision for persons placed on probation or supervised release. 17-03
Chief Judge Clark recently signed General Order 17-01 creating an Organizational Committee for the purpose of organizing an Association of Women Lawyers of the Eastern District of Texas in affiliation with the Eastern District of Texas Bar Association. The committee is chaired by Elizabeth S. Forrest of my firm’s Sherman office, and includes Amanda Abraham from Marshall and Evelyn Chen of Plano.
2016 saw 19 patent trials in the Eastern District of Texas. Plaintiffs won 43% in the patent-heavy Marshall and Tyler divisions, but the overall outcome was 52% due to three plaintiff wins in the traditionally less patent-intensive divisions of Sherman and Beaumont. The nine defense wins also saw five invalidity findings, so in almost half the noninfringement verdicts the jury (or in one instances the court) went ahead and invalidated the asserted claims as well. JMOLs Court watchers know how rarely verdicts are set aside on postverdict JMOL, but this year saw three. Judge Schroeder set aside the first VirnetX verdict in the spring, and Judge Gilstrap set aside the Gonzalez verdict on 101 grounds, as well as setting aside the damages verdict in one of the two Core Wireless trials. For statistical purposes I count JMOL outcomes on liability as wins for the defendant, which is why I am trying not to refer to “verdicts” this year, in most cases, but outcomes. Beaumont & Sherman Judge Mazzant tried two patent trials in Sherman this spring, and Judge Clark had one, a medical device case, in Beaumont last month. All three juries returned verdicts for the plaintiff, for $1.2 million, $6 million (later enhanced to $20 million) and $17.4 million (the medical device case). Tyler Plaintiffs almost broke even in Tyler with three outcomes for plaintiffs and four for defendants, with VirnetX chalking up one for each side during the year. The outcomes represent the range of patent verdicts, with VirnetX over $300 million, the second $22 million, and the third $324,000. Marshall Plaintiffs didn’t break even in Marshall either, with four plaintiff wins compared to five defense wins. The parties and the awards in those cases also illustrate an increasing trend in Marshall filings that I have posted on previously – the district in general and Marshall in particular is seeing more competitor cases and substantially fewer NPE cases, with only a few of the latter going to trial. Of the four plaintiff wins, two were by Core Wireless, which obtained jury verdicts of $3.5 million and $2.3 million, but Judge Gilstrap set aside the first for insufficient evidence. The other two verdicts – Genband’s $8.1 million and Arthrex’ $17.4 million were both in hotly contested cases between competitors. In fact four of the nine trials were between competitors, and of the three NPEs that did go to trial in Marshall, two out of three lost, with one losing its patent as well. Which underscores that asserting patents comes at some risk for competitors – interestingly all four of the trials in which juries invalidated patents were in competitor cases, while none of the patents asserted by nonpracticing entities were found by juries to be invalid (although as noted above, Judge Gilstrap did invalidate one postverdict). So the net outcome for NPEs in Marshall in 2016 was two losses, one win for $2.3 million and a second win for the same plaintiff on liability, but with the prior finding of $3.5 million to be retried.
It’s the time of year for 2016 reviews, and today’s Marshall News Messenger had one I thought readers might be interested in Judicial system in review: Marshall courts saw throng of good, bad activity in 2016 in which the paper’s local courts reporter Robin Y. Richardson lists the most significant events in Marshall courts both state and federal during the year.
Good article by Wei Wang, Gregory H. Lantier, Derek Gosma, and Mindy Sooter in WilmerHale’s Eastern District of Texas Newsletter this month on motions to transfer in the district. In it, they note that the number of motions to transfer filed in EDTX cases dropped over half from 2014 to 2015, from 135 to 63, while at the same time success rates rose from 34% to 43%. They note that filings of motions to transfer are up somewhat this year so far, which I in turn note makes a lot of sense when you consider that the motions to transfer in the large number of Thanksgiving Specials that were filed in late November of last year would have been in 2016. But, importantly, thus far in 2016 the success rate for motions to transfer has leaped again, to 57%. That’s a 60% increase in the grant rate over just two years ago. They conclude that the higher success rate is the result of better-supported motions, and not because the standard the Court has applied has changed – which I’d agree with. But I’d also note that as with rulings on 101 motions, motions to dismiss and motions for summary judgment it also reflects the significant bubble of relatively weaker cases filed in 2014 and especially 2015 which largely dissipated locally after the eDekka 101 and 285 rulings around the end of last year and the beginning of this year. (More in this in real terms soon). Also, the standards for venue motions in patent cases filed in courts applying Fifth Circuit law have been pretty stable for several years now, so the variations aren’t because the law has changed or was changing during the period, as I’d argue was the case in 2009-2012-ish. In short, the variable wasn’t the judges or the law – it was the quality of motions and the quality of the facts they were based on.