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.