Last Call for Registration for 2017 EDTX Bench/Bar

Normal Registration for the 2017 Eastern District of Texas Bench Bar Conference will close on September 18, 2017. Thereafter, registration will be on a space available basis and subject to a late fee.  Registration is available through the Eastern District of Texas Bar Association website and the Center for American and International Law.

Harvey-related courthouse closures & deadline extension information

The photo on the left shows the current state of Interstate 10 outside Beaumont. Accordingly, the Court has announced that the EDTX courthouses in Beaumont and Lufkin are closed until Tuesday, September 5.  In General Order No. 17-14, Judge Clark states: Counsel or Parties who believe that deadlines for filing of any motion in a pending case have been, or will be, immediately affected by the recent flooding in Texas may be offered relief by the filing of a motion for extension, even if past the filing deadline. Any late-filed request for extension should set forth in detail the circumstances for such late filing. The Court’s electronic filing system remains available and will be monitored for emergency matters.

2017 EDTX Bench/Bar – October 4-6, 2017 – Plano, TX

The 2017 EDTX bench/bar has been set for October 4-6, 2017 in Plano.  Registration and the program are available through the EDTX bar association website here.

The event starts with golf, shooting, or a flight of four sessions on legal topics Wednesday afternoon, followed by the opening reception, which is in turn followed by a screening of Uncertain: The Movie, which documents a remote corner of the EDTX’ Marshall Division. Rolling Stone calls it Uncertain “A Must See Movie” and the Wall Street Journal calls it “Beautifully Poetic”.  And no, I’m not making that up.  There is a good review here.

The conference opens Wednesday morning, after which I will be chairing the first panel Getting In and Getting Out of Texas. Drilling Into Questions Yet Unanswered By TC Heartland in the Age of Cyberspace, which leads off two more days of terrific panels and speakers.

The panels include the EDTX judges, of course, as well as judges from the Second (Cabranes), Fifth (Costa) and Federal (Stoll) Circuits, and judges from the following districts ranked in order of barbecue quality: WD Texas (Yeakel), ND Texas (Lynn),  SD Cal (Bencivengo), Delaware (Burke, Thynge), WD Pa. (Bissoon) and New Jersey (Linares).  Sorry about that, New Jersey, but you’re just never going live down that Pace ad.

March Patent Status Conferences – Data and Analysis

My report on the March status conferences for Judge Gilstrap’s Marshall, Texarkana and Tyler patent dockets is out and attached for subscribers, with cases, Markman and trial dates and information regarding number of defendants/consolidated cases.

It took a little longer to compile due to the press of, well, practicing law since I was in trial downstairs in Judge Payne’s court the week of the status conferences, as well because I wanted to start adding some additional detail regarding the number of defendants/number of consolidated cases in each case to try to respond to an issue I am seeing in the reported statistics.

One of the problems with comparing EDTX filings and data to other districts is that the practice of consolidating related cases for pretrial in EDTX (and other districts as well) can mask the number of cases being handled or addressed by orders.  As an example, motions that would be filed separately in individual cases absent consolidation are filed only in the lead case (either separately or in most cases consolidated since they raise the same defensive issues – as Judge Gilstrap put it in Iris Connex “[a]fter consolidation most of the other defendants echoed Dell’s argument for dismissal), so the order disposing of them is typically only entered in the lead case, making it appear that there are an abnormally low number of certain motions or orders compared to other districts.

To examples show this clearly. First, in eDekka the court dismissed on 101 grounds and awarded attorneys fees under 285 in 24-27 cases – but because the order was entered only in the lead case it only got counted once. In Iris Connex, the noninfringement order addressing an identical defensive argument resolved eighteen separate cases – but was only entered in the lead case.  On the other hand, some 101 motions are filed pre-consolidation, and the order granting or denying them might be filed in the individual cases – I have seen that lately as well.

My extraordinarily unscientific rule of thumb is now that there seem to be on average about three component cases per consolidated case by the time something interesting happens, so when comparing the number of motions/orders to the number of patent cases filed, I’d multiply the numbers by three.  That gives you an idea of the actual level of activity in the docket, as well as an idea how much duplicative motion practice consolidation for pretrial avoids.  The number is likely higher for early-filed motions like 101s, and probably a little lower for later-filed ones like summary judgments, but the principle is the same – consolidation avoids duplicative motions and orders, but it complicates comparative analysis somewhat.  Facts will do that to you.

I do need to note that this doesn’t apply to motions to transfer, not just because they are typically filed pre-consolidation, but because per Judge Gilstrap’s rule, those motions are required to be filed and considered in the individual cases.  So the 50% dropoff in the filings of motions to transfer that began in 2015 has nothing to do with consolidation – those have always been handled independently of the pretrial consolidation.  They just aren’t filed as much any more.

I hope the attached analysis of the status conferences is useful.