How Many Judges Does It Take to Conduct a Markman Hearing?

Yesterday saw  a fairly unique proceeding in Judge Gilstrap’s courtroom in Marshall when he and Chief Judge Barbara Lynn (neither pictured at left) conducted a joint claim construction hearing in the case of Seven Networks v. Google & Samsung.   Judge Lynn has a related case in the NDTX, so several months ago the judges coordinated the proceedings to combine the Markman presentations.  While judges in numerous districts – including Judges Lynn and Gilstrap – have coordinated proceedings in related cases in different districts before, especially after the AIA required cases to be filed separately in more situations, conducting a joint hearing is, to my knowledge, a first. It will be interesting to see if the order is joint as well.

Marshall/Tyler patent scheduling conferences – September 11, 2018

If it’s the second Tuesday of an odd numbered month, there’s a good chance there are patent case scheduling conferences going on across the street at the Judge Hall courthouse.  This month was no different, with numerous cases heard for both Judge Gilstrap’s Marshall and Tyler dockets, as set forth below.

Congratulations Alan Albright – USDJ – WDTX – Waco Division

If readers will permit the brief digression, I wanted to congratulate Texas’ newest federal district judge, Alan Albright of Austin, who was confirmed by the Senate last week for the vacancy in the Waco Division of the Western District of Texas.

I first met Alan the fall of 1986 when I moved to Austin to start graduate school and worked days as a runner delivering papers at his firm McGinnis, Lochridge & Kilgore.  They had this newfangled “facsimile” machine down on the ninth floor, but since you could count the number of offices in Austin that had one it could send or receive from on two hands, the only way to deliver papers between offices was to have one of us drive (or walk) them to where they needed to go.  Seriously.  Anything that had to get somewhere faster than U.S. mail we hand carried.

Alan had just joined the firm recently as well, after clerking for Judge Nowlin in Austin, and was a ball of fire, all starched shirts, suspenders and that goofy looking Saab. But he was always a great guy, even to a mere runner like me.  We’ve run into each other numerous times through the years on patent panels in Austin and Horseshoe Bay, and he’s tried cases here in Marshall, so he knows us up here behind the pine curtain.  And he has a son named Grayson as well, so you know he has sound judgment.

The Waco courthouse is also a special place. I interned there for Judge Smith 27 years ago while in law school, so my first experience with these bizarre things they don’t teach you about in law school called “motions” was in what will soon be Judge Albright’s chambers.  I had a chance to visit with Alan a few months back about Waco and told him a few things that make it special to my family, and I’m sure it’ll be special to his as well.  (He already knows he needs to switch to Dr Pepper).

Congratulations, Alan.  We’re proud of you and for you.

More forum selection in criminal cases – 5th Circuit approves prosecutors’ filing in “center of commerce” in EDTX

On Monday I noted that the EDTX is a venue of choice in significant drug smuggling cases arising out of seizures on the other side of the Galapagos islands.

Coincidentally, on that same day the Fifth Circuit released another opinion affirming prosecutors’ right to select an EDTX venue for a false statements case where the alleged lie took place in Eastern District of Texas, was mailed from the Northern District of Texas, and the agency received the document in Colorado.   This underscores a fact familiar to EDTX practitioners – there are a lot of criminal cases that could have been filed in the Northern District of Texas or elsewhere but are instead filed in the Eastern District, for reasons that are beyond the scope of this post.  And the Fifth Circuit has something to say about that, as I explain.

Forum selection in criminal cases – how drug arrests near the Galapagos Islands get to the Eastern District of Texas

The subject of forum selection in civil cases gets a lot of press.  What doesn’t get as much attention is forum selection in criminal cases, i.e. where the Justice Department files its cases.

In the same way that private litigants often seek out EDTX judges and juries, prosecutors often do the same in criminal cases.  In fact, East Texas juries are often asked to hear criminal cases involving drug smuggling because the U.S. Attorney’s Office for the Eastern District of Texas has asked to prosecute them.  This started with former U.S. Attorney John M. Bales, continued under his successor as Acting U.S. Attorney Brit Featherston, and is continuing under new U.S. Attorney Joe Brown.  The intent is to attempt to break Central American smuggling networks responsible for bringing cocaine into Texas.

“To really have an effect on the drug supply in this country, we have to be willing to go after every person involved in the chain of distribution,” Brown told the Dallas Morning News Friday. “Whether it’s the street dealer, or the person on the boat transporting, or the leader of the cartel, we will charge them and convict them.”

This was front and center in Judge Mazzant’s courtroom in Sherman last week as he wrapped up a criminal trial dealing with two defendants accused of taking part in an attempt to smuggle a ton of Columbian cocaine across the Pacific Ocean.  The defendants were arrested after being stopped approximately 1,000 miles west of the Galapagos Islands by the  USCGC Hamilton (WMSL-753), which I feel obliged to tell you is the fourth Legend-class cutter of the United States Coast Guard, as well as the fifth cutter named after Alexander Hamilton, who in addition to absolutely killing it on Broadway was also the first United States Secretary of the Treasury and in that position requested the formation of the United States Coast Guard (as the United States Revenue Cutter Service).

The case is believed to be the first involving maritime drug smuggling to make it to trial in the EDTX.  Cases more routinely involve smuggling from Colombia to the U.S. and Mexico.

No patents were harmed in the prosecution of this case.

2018 EDTX Bench/Bar Planning Committee Meeting

The annual meeting of the Posse took place last night and today in Frisco/Plano/Arlington to plan the upcoming 2018 bench/bar conference.  The Arlington trip was to AT&T Stadium, which will be the site of the Thursday night dinner.  The exact schedule isn’t set yet, but will include locker rooms visits, so of course we checked out those as well.

We’re actually in the planning meeting as I type this, so if you have suggestions for topics or speakers, send them along.  The schedule will be worked on over the next several weeks, so comments are welcome anytime.

April 24 Patent Case Scheduling Conferences

The most recent batch of bimonthly patent case scheduling conferences was held April 24 in Marshall, and as usual I have a brief rundown of the results compared to the last conference at the beginning of February.
I am a little behind compiling the results since I was in trial with Judge Schroeder in Texarkana when the conferences took place, but the good news is that lets us see what’s happened in these cases in the now 36 days since then.

New Requirement on Local Counsel Attendance at Mediation

Who attends mediation for a client is a decision that has to take into account several requirements.  There are the local rules requiring mediation, the Court’s orders requiring mediation, either in general, specific to a case or really really specific to a case, i.e. Ms. X is required to attend, and perhaps a mediator’s suggestions or requirements as far as who should be there. While the requirements regarding attendance of clients have always been fairly concrete and contemplate usually a single key person with a certain level of authority, the requirements regarding counsel have not always been beyond the attendance of lead counsel, but a major recent development changes that in a lot of cases.