Patent Litigation Lawyer

The anonymous author of the Patent Troll Tracker blog argues venue reform is necessary to curb the practice of “patent trolls,” which he broadly defines as patent owners who do not practice their IP, suing multiple defendants for infringement in the Eastern District of Texas. The post parrots popular arguments the pro-reformers have advanced in favor of mandatory venue provision; that is, the Eastern District is unfair to infringers, and filings there need to curtailed if not altogether eliminated. This belief, however, runs contrary to the evidence and decidedly tilts the playing field in favor of infringing companies.

With regard to venue, Plaintiffs have historically gravitated to venues where they can obtain relatively fast trial dates, have broad discovery, and obtain fair and predictable rulings. Initially this was the “rocket docket” in Virginia, which gave way to the Eastern District of Texas after the volume of filings in Virginia slowed down the trial settings. Now, the Eastern District of Texas has come under fire simply because a disproportionate amount of cases are filed there.

The notion that the Eastern District of Texas is a plaintiff’s playground is belied by the facts.

First, only three of the seven district judges in the Eastern District were appointed by a Democrat. Several of the judges were appointed by George W. Bush, who has made plain his stance against “judicial activists.” Trial lawyers actually practicing before Eastern District judges uniformly report the conservative nature of judicial rulings, including Judge Clark recently throwing out a record verdict. In point of fact, the Eastern District has yet to produce a staggering RIM/NTP type settlement or verdict.

Second, plaintiffs do not win in the Eastern District at any greater rate than any other “patent friendly” venue. Indeed, only two of seven cases tried in 2007 resulted in a Plaintiff’s verdict, according to a post on Patently-O.

Third, there does not appear to be any coherent argument as to why having a de facto specialized venue for patent cases is a bad thing. Med mal reformers have long contended that having specialized courts for med mal claims would greatly improve the resolution of these claims. The Eastern District of Texas is populated by judges with very impressive patent pedigree, which one of the main attractions. The Eastern District has specialized procedural rules for patent cases, which were actually modeled after the Northern District of California (which will inevitably be the venue of choice of the venue rules are changed). There is no actual evidence to suggest the juries in the Eastern District of Texas are any less capable of rendering “just” verdicts than jurors in any other venue. In short, there is no evidence or argument to suggest the Eastern District is anything other than faster, cheaper, and smarter than almost any other potential venue.

Wiping out a model district as a “remedy” to patent troll suits makes little sense. Patentees do have a right to select the venue that affords them the best chance of litigating within the ambit of Rule 1, which proscribes the “just, speedy, and inexpensive determination of every action.” Further, the proposed changes throw the baby our with the bathwater, as they do not differentiate between the so-called trolls and the patentees who practice their IP–both are forced to the defendant’s district.

Legitimate patent reform is necessary in certain areas, but the eradication of the Eastern District is overkill and doesn’t fix any problem. Let’s hope wiser heads prevail in DC on this particular issue.

Armi Easterby