I’d like to congratulate Wes Hill for becoming the longest-tenured local rules chair in EDTX history, breaking my record this month of 9 years by beginning his tenth at the conclusion of the bench/bar. I served as chair from 2000-2009 when Wes replaced me, with 2009-2010 as my chair emeritus year, colloquially referred to as either the “victory lap” or “free at last” year, depending on who you ask.
The dates for the 2019 EDTX Bench Bar Conference have now been set and are: September 23-25, 2019 in Plano, Texas. Yes, these dates cover a Monday, Tuesday and Wednesday. Please mark your calendars accordingly. Rumors that the dates were selected to permit a launch window for the second annual Texas dinner to be held on the International Space Station are completely unfounded. (It doesn’t have adequate seating anyway). But I can’t wait to see what the planning committee does to follow dinner at AT&T Stadium. No pressure or anything.
This afternoon saw entry of an order amending the local rules, including the patent local rules, effective December 1, 2018. As is usually the case, many of the changes or minor and don’t affect practice all that much, but this year there are several significant ones that I want to discuss.
Earlier this evening, the U.S. Senate voted to confirm a number of judicial nominees to district and appellate courts. They included three circuit judges and six district judges by record vote, and six more judges by voice vote. Included in the last group was Jeremy Kernodle for Judge Schneider’s vacancy in the Tyler Division of the Eastern District of Texas.
This fills one of the four vacancies that currently exist, and will give the EDTX a fifth active judge for the first time since Judge Clark took senior status earlier this year. Senate Judiciary has already approved the nominations of Cam Barker of Austin and Michael Schneider of Beaumont for two of the three remaining judgeships, but floor votes have not been scheduled.
There is not yet a replacement nominee for the fourth vacancy since the withdrawal of the nomination of Jeff Mateer late last year.
Yes, there’s the whole AT&T Stadium thing, but the unquestioned highlight of the bench/bar next week just has to be the panel I will be co coordinating. In classic EDTX bench/bar brochure style it is titled:
Local Rules, Local Patent Rules, Divisions & Judges of EDTX. From Case Management Conferences and Discovery to Voir Dire and Jurors Who Sometimes Ask Questions, It’s Not as Homogeneous as You Might Think. But Fairness and Credibility Counts Everywhere.
For reasons I can’t currently recall, I thought it would be a good idea to address this topic using an online Jeopardy! format (Attendees at the bench/bar planning session thought I was joking when I brought this up – which would have been a good bet – but it turns out I wasn’t). I saw Claude DuCloux use this for a ethics presentation in Austin last year and thought it would be particularly effective for a presentation on rules. My panel co-cordinator Alex McNicholas has been putting together the substance of the presentation, leaving me to focus on the bad jokes. Our panel consists of:
Alex McNicholas – EDTX Career Law Clerk (Panel Co Coordinator)
Boone Baxter – Heim, Payne & Chorush, LLP (Former Law Clerk to Judge Schroeder & Judge Davis – Texarkana/Tyler Divisions
Elizabeth Forrest – Siebman Forrest Burg & Smith, LLP (Former Law Clerk to Judge Mazzant – Sherman/Plano Division
Elizabeth Chiaviello (Former Law Clerk to Judge Schroeder & Judge Mitchell – Tyler/Texarkana Divisions)
Rudy Fink – McKool Smith (Former Law Clerk to Judge Gilstrap, Judge Payne and Judge Bryson – Marshall Division & CAFC)
Ben Elacqua – Fish & Richardson (Former Law Clerk to Judge Clark – Beaumont Division)
Topics currently slated are:
Behind the Pine Curtain
How Appealing, and
Local Local Rules
The questions will lead into a discussion of the topics by this stellar group of practitioners.
I’m pleased to announce that the EDTX bench/bar speakers lineup now includes Dallas Cowboys owner and general manager Jerry Jones, who will be welcoming attendees at the Thursday dinner at AT&T Stadium.
As I’ve previously posted, Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, will be keynote speaker at the Texas Dinner in Honor of the Judiciary and the 7th Amendment on the field at AT&T Stadium.
Warming up the crowd for Director Iancu will be Texas author S.C. Gwynne, author of Rebel Yell, Empire of the Summer Moon and The Perfect Pass, who will tell lawyers and judges what they should take away from Hal Mumme, Mike Leach, Stonewall Jackson and and the Comanche Indians. Focusing on The Perfect Pass, Gwynne will tell a riveting story of innovation and how rejection of conventional wisdom and reinvention can transform outcomes and change the course of history. I’m not making that up – I’ve read the book, and it’s outstanding. Be watching for Director Iancu to use it in his remarks as well because … it’s a riveting story of innovation and how rejection of conventional wisdom and reinvention can transform outcomes and change the course of history. Football and patents – what’s not to like?
Buses will to take participants from the conference hotel to the stadium, where we will enter the field for dinner through the 50 yard line tunnel used by the Cowboys at games, sort of like to the left minus fireworks, cheerleaders and 90,000 screaming spectators. (Only the judges get that).
All EDTX judges are expected to attend, as well as judges from other Texas districts, Texas state courts, and from California, Tennessee and South Carolina. We are also pleased to have with us once again
Chief Judge Carl Stewart of the Fifth Circuit and Chief Judge Sharon Prost
of the Federal Circuit.
As the attached conference brochure makes clear, we will have patent and non-patent subject matter, including sections dealing with the False Claims Act, Qui Tam, Trade Secrets and Cyber-Crime claims and issues. Panels include leading practitioners in each subject matter area, as well as experienced judges, and in house counsel from many major US and International corporations.
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.
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.
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.
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.