Eastern Texas' IP 'Rocket Docket' Shows Signs of Slowing

Lynne Marek

The National Law Journal

Patent lawsuit filings in the U.S. District Court for the Eastern District of Texas -- long considered a national "rocket docket" for intellectual property litigation -- are ebbing after a steady increase during the past seven years.

The district has logged 245 lawsuits so far this year, compared with a total of 372 for all of last year, according to the court clerk's office. If filings continue at the same rate for the rest of this year, there will be 327 lawsuits filed this year, dropping 12 percent from last year.

That would be the first yearly decline in at least five years.

Some lawyers say the growing popularity of the district is to blame for cases taking longer to get through the district. Some of the divisions within the district, particularly Marshall, are seeing a greater slowdown than others, attorneys said. There are no statistics yet to show how fast cases are moving this year, but lawyers are noting the sluggish pace.

"I've got a case down there, it's no rocket-docket at all," said Bill Frankel, a Brinks Hofer Gilson & Lione partner in Chicago, who is chair of the firm's copyright practice group. "I think it's starting to dawn on people."

Frankel's case was filed there seven months ago and he won't be able to start initial case management until this month at the earliest, he said. The courts there are now willing to transfer some cases amid the backlog after "jealously" holding them in the past, he said. Frankel says the "ultimate rocket-docket" now is the International Trade Commission, which has become increasingly popular in recent years for patent filings regarding international infringement cases.

The commission has seen a rise in filings over the past seven years, though the total volume doesn't approach Eastern Texas. So far this year, there have been 49 filings with the commission, a 50 percent jump from 32 in all of 2001.

The Eastern District of Texas edged out Central California last year to become the most popular federal jurisdiction for filing a patent case after the Texas district spent years building a reputation as a district where judges have extensive knowledge and experience with the complex intellectual property litigation and the accompanying federal rules.

The district also has local patent rules that make for more predictable proceedings. The district has been considered friendly to plaintiffs, though some lawyers say that is changing now.

While many attorneys said they still like the district because of the judges' expertise, they're noticing the backlog. The Marshall division is getting bogged down even though the Sherman and Lufkin divisions are still smooth, said Clyde Siebman, an attorney with Siebman, Reynolds, Burg, Phillips & Smith in Texas.

"The time to trial has slowed a little bit, but it's still a place where patent cases can be handled predictability and efficiently," Siebman said.