Judge Gilstrap Succeeds Judge Clark as EDTX Chief Judge

United States District Judge Rodney Gilstrap will assume the position of Chief Judge of the Eastern District of Texas on Thursday, March 1, 2018. He will replace Chief Judge Ron Clark who will take senior status at that time. For those keeping track, that will mean that the district has four of its eight active judgeships filled, with two judges on senior status, both in the Beaumont Division.  Three of the four vacancies have pending nominations.

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.

Habemus nominees

The White House officially announced three judicial nominees for the Eastern District of Texas earlier today.  The nominees are:

  • Jeremy Kernodle of Dallas
  • J. Campbell Barker of Austin
  • Michael Truncale of Beaumont

The Eastern District currently has three vacancies in its eight judgeships, with two in Tyler and one in Plano, with a fourth coming in March when Chief Judge Ron Clark of Beaumont takes senior status.

As readers may recall, last year the White House nominated Jeff Mateer of Austin for the Plano slot, however his nomination was not resubmitted this month.  As readers may also recall, last year former Dallas state court judge Karen Gren Scholer of Dallas was nominated by President Obama for the Plano spot.  She was renominated by President Trump last year, but for a Northern District spot in Dallas, was voted out of committee October 26, and is waiting for a floor vote.

The U.S. Attorney picture is somewhat clearer – last year President Trump nominated Grayson County (that’s Sherman) district attorney Joe Brown.  Joe has been voted out of Judiciary as well and is awaiting a floor vote.

General Order 17-24; Local Rule Amendments (Filing of Sealed Documents & Summary Judgment Procedures)

While I was cavorting in Plano last week, the Court issued General Order 17-24, which is the annual revisions to the local rules. Public commentary regarding the local rule amendments is being accepted through Thursday, November 30 , 2017. Comments should be sent to

U.S. District Clerk David O’Toole

William Steger U.S. Courthouse, Room 106

211 West Ferguson St.

Tyler, TX 75702,

or to ClerkOfCourt@txed.uscourts.gov(link sends e-mail).

The rule amendments will be effective December 1, 2017 unless otherwise noted in the general order (so as to coincide with the FRCP amendments).

The two that will be of the most interest to practitioners will be those changing (1) the procedures for filing under seal; and (2) the procedures for summary judgment briefing, but there are a few others that deserve brief mention.

October Patent Filings – false alarm

A few days ago I posted that the filings for patent cases in late September showed the Eastern District of Texas slightly ahead of Delaware over the last three weeks of the month.  Turns out it was a false alarm.

After being neck and neck in recent days – the two districts were tied with 21 each two days ago, and earlier today were still tied at 27 – Delaware has now pulled comfortably ahead with 32.  EDTX is a distant second at, uh, 31.

2017 EDTX Bench/Bar – Jurisdictional issues when phone goes off when judge is speaking

Here’s a law school hypothetical for you. Judicial panel with three appellate judges from different circuits and two district judges. District judge is speaking and one of the appellate judges’ flip phones started playing music. (Yes, flip phone).

Are sanctions available, which judge awards them, and does it matter if the accused judge’s circuit overlaps with the speaking judge?

There are about 400 lawyers in the audience that are all thinking exactly the same thing. Well, right after we thought (1) oh sh&t is that my phone?; and (2) that is just funny as hell.

Answer: My guess is yes, but it’s a totality of the circumstances test, Federal Circuit law applies, regardless of which circuit’s judge’s phone went off, and whatever the district judge does on sanctions will be held to be reversible error.

2017 EDTX Bench/Bar – Post #3 – Thursday pm

The afternoon’s session include panels on: Willful infringement & enhanced damages – with judges Bencivengo (SDCA), Bissoon (WDPA); Schroeder, Burke (DDE) and Love. IPRs – with Judge Roy Payne and an all star lineup of practitioners. Early damages disclosures in ND Cal Using jury research – with Judge Zack Hawthorn. Tips & Traps for deposing expert witnesses After the final session we have the president and chief judge’s reception and dinner, which features the year’s recognitions and awards, and entertainment by the Bar & Grill Singers from Texas.

2017 EDTX Bench/Bar – Post #4 – Friday

Friday is another busy day at the bench/bar, with sessions on:

Federal Circuit – Judge Stoll is here and presented on how the CAFC works.

Venue Considerations When Filing Patent Cases – including heckling from NDTX chief judge Barbara Lynn when the chart didn’t accurately reflect the shape of her district. Another high spot was the ______ Rule (due to Chatham House rules I can’t credit Jeff Bragalone with this rule) which states that whether consolidation of cases is permitted depending on whether the accused products are in the same aisle at Walmart. Great observation.

Corporate reporesentatives at trial in EDTX (or, why do people bring a complete jerk to trial as their corporate witness?)

IPR and Prosecution bars – featuring Dallas PTO regional office director Hope Shimabuku.

Damages in Patent Cases

Patent Pilot Cases – Yes or Nay? – this panel is moderated by Judge Cabranes from the Second Circuit, and includes Judges Costa (5Cir) Stoll (CAFC), and Clark and Gilstrap from EDTX.

Next up is a presentation on and panel discussion about millennial (you know, those obnoxious kids?)

And the conference concludes with a panel on cyber attacks on law firms.

It’s been a great three days, including the district’s farewell of sorts to Chief Judge Ron Clark last night. Judge Clark is taking senior status March 1 of next year, so while he will remain active handling cases as a senior judge, this is his last conference as chief judge, and he was recognized with a framed certificate and a magnificent collectible pistol with his name, title and the district’s seal on the ivory grip. (I’ll post photos when the conference photos are out). EDTX Bar president Bo Davis hastened to tell the audience that the grip was not – as it appeared to be – from an endangered species, but was instead from an extinct species. Well alright then.

2017 EDTX Bench/Bar – Post #2 – Thursday am

The bench/bar conference was formally convened on Thursday morning by EDTX Bar president Bo Davis and Chief Judge Ron Clark. The morning’s sessions included:

Effect of TC Heartland

I moderated this panel, which included former EDTX chief Judge Leonard Davis, Baylor Law dean Brad Toben, Tom Meloro, Wes Hill and Ted Stevenson. I really appreciate everyone’s work on the panel, which I think was very helpful to attendees – as we explained I think pretty well how many questions remain unanswered in this area.

Hatch Waxman

This panel is going on as I type this, with judges Linares (DNJ), Gilstrap, Burke (DDE), explaining the subject and the effect of the AIA and TC Heartland with multiple other panelists.

Mediation

Judgfe Thynge (DDE) is joined by several mediators to discuss what makes a mediation successful.

EDTX – past, present & future

My partner Clyde Siebman and Steven Geiszler, chief U.S. IP litigation counsel for Huawei co-chair this panel consisting of EDTX judges Ron Clark and Rodney Gilstrap.

The morning’s sessions are followed by lunch speaker my old State Bar Litigation Section partner Talmage Boston, who is going to defend Atticus Finch even After Go Set A Watchman. Now that should be interesting!