2017 has been a golden year for 101 motions in the Eastern District of Texas, with the reported grant rate – at least for the six month period from last fall through this spring – hovering at 75%, compared to 18% in Delaware. It’s even triple the 25% grant rate during the same period in the Northern District of Texas, according to the below table from Bilksiblog.com. Last week saw another negative data point on 101 motions for plaintiffs, as Judge Gilstrap granted a 101 motion on one patent – and on a claim that the PTAB had declined to institute review on – 45 days after the motion was filed, and stayed the case as to several others pending PTAB proceedings.
One of the things I like to share with readers is something of the experience of practicing in the Eastern District of Texas, which more often than not includes references to football, as shared experiences, whether civic, social, educational, or historic. In other words, more football. For the good of the order, then, I can’t let what happened in Waco this past weekend pass. When the Baylor Line was founded back in 1970, it was a spirit organization for first-year men, who formed a human tunnel on the field at Floyd Casey Stadium to welcome the football team, and then sat in the seats behind the visiting football team and shouted, uh, encouraging things, I’m sure. For a firsthand view of what it’s like to run the Line, here’s a video. (It is a really neat tradition). It wasn’t until 1994 that it became a co-ed organization, leaving a generation of alumnae who were never able participate. This weekend, those women finally got that chance when the university invited all alumnae who were freshmen from 1970-94 to participate in a ceremonial running of the Baylor Line. Here’s the point I’m leading up to. My wife Jamie and three of her Baylor dorm friends have had an annual tradition of “spa weekends” where they get together going back to after they graduated from Baylor, which was in 1989. I’m not saying that means they just turned 50 because that would be unwise. They’ve always been very close, even to the point that two of the four married guys named Michael Smith (I am not making that up). They all ran Saturday – along with over 800 other women – in their “MamaSpaBear” Line jerseys, and Baylor ran a nice feature story on them Longtime friends among alums in this Saturday’s ceremonial Baylor Line run, which features priceless photos of my honey in the mid-80’s, with truly Texas-sized hair. Making it extra special this year is that one of those freshmen running with the Line this year is our son Grayson, who’s studying computer and electrical engineering, and volunteering as cannon fodder, i.e. acting as a witness, for Practice Court students at the law school. I’d like to say that Jamie and Grayson made Baylor history by running together Saturday morning, but he slept through both kickoff and his mother’s repeated calls, texts and emails. In fairness, an 11 am kickoff is early for a college student on Saturday. He did show up after halftime for a photo op, though.
These JMOL rulings arise out of a trial last year in a competitor case in which the jury found both sides’ patents invalid, and neither side’s patents infringed. Judge Gilstrap observed, “[a]s Shakespeare’s Mercutio might have said if he been a member of this jury, “A pox upon both your houses.” William Shakespeare, Romeo and Juliette, Act 3, Sc. 1.”
As we will see, it isn’t getting any better for either party.
With apologies to J.R.R. Tolkien, I’ve had people ask me this for 25 years and I knew what the answer was, but didn’t have a court-approved formula to cite to. Now I do.
It’s been a busy few weeks finalizing some other projects, including tests, papers, seminar presentations and the like (and I finally finished that anime-ish P-40 for Parker with accurate paint colors), but I’m finally able to turn more of my attention to some of the very interesting activity in the district in the last few weeks. And speaking of interest, there are few cases that have generated more than VirnetX v. Apple, which just had its most recent trial’s postverdict motions come out. Most legal news is interested in the bottom line – that the verdict amount of $302 million resulted in a $439 million judgment, but for practitioners the analysis of how it got there is of great interest – I am not the only one out there that enjoys a good JMOL. So I wanted to work through the motions, but only after a short … well, that’s a lie, it’s not going to be short – procedural history.
One of the points I am making in the papers I am writing and panels I am speaking on this fall re: TC Heartland is that the issue of whether venue is improper as a result of Heartland/Cray is sometimes rendered moot by the resolution of a followup 1404 motion seeking transfer. We saw another example of this in the EDTX just this week.
Plaintiff and the defendant in this pending Delaware patent case Encoditech v. Virgin Pulse, 1:17cv1283 RGA jointly sought transfer to the Eastern District of Texas, Tyler Division. In the motion the parties state:
“The Parties believe and agree that the Eastern District of Texas is a more convenient forum for many recognized reasons, including: (1) Plaintiff is incorporated and located in the Eastern District of Texas, (2) Defendant’s witnesses for the purposes of this matter are closer to Texas than Delaware, and (3) the transferee district is currently less congested than this District.”
While I was on my merry way to Waco Friday afternoon for the 25th anniversary of the Class of 1992 (I graduated from Baylor Law that February) a Marshall jury in Judge Gilstrap’s court was wrapping up deliberations in a patent infringement case.
There’s been some interest in the current state of filings post-TCH, so I wanted to update readers with some relative stats for the top patent filing districts in recent weeks.
This recent order by Judge Schroeder granting for the most part a motion to dismiss for lack of patentable subject matter builds on an earlier grant as to different claims from two of the same patents. Accordingly, the procedural history is a little complex, but the discussion rewarding …