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When the Eastern District of Virginia, which once had the reputation as an IP “rocket docket,” became overwhelmed with patent lawsuits several years ago, the judges advised lawyers to go somewhere else. That “somewhere else” turned out to be the U.S. district court in a place called Marshall, Texas, about 100 miles east of Dallas. But now Marshall may be approaching the Virginia district’s experience. In the last several years, patent lawyers have flocked to Marshall, a small northeastern Texas town of 25,000, because of its speedy court process, patent-enthusiastic judges and juries considered ideal for hearing intellectual property cases. This year alone, the court has seen 59 patent cases, more than triple the total in 2003, which saw just 14 patent suits. Most recently, in a case that plaintiffs’ lawyers say could produce large-scale damage awards, a Florida company filed a patent infringement suit against Cisco Systems Inc., alleging that the world’s largest maker of computer-networking equipment is using its technology in some of its products. ConnecTel v. Cisco Systems Inc., No. 204-CV-396 (E.D. Texas). In another high-stakes case, in 2002, Intel Corp. agreed to pay Integraph Corp. $150 million after a Marshall judge ruled that Intel’s microprocessors infringed two Intergraph patents. Integraph Corp. v. Intel Corp., No. 201-CV-160. But patent attorneys say Marshall’s docket is starting to get heavier and slower — a big drawback since one of the main attractions is quick service. It’s only a matter of time, they say, before lawyers start searching for another venue. “That’s what happened in Virginia. The judges over there got inundated with work and finally said, ‘Time out,’” said Charles Baker, an intellectual property litigator with Porter & Hedges in Houston, who has tried cases in Marshall and noted that patent lawyers are always on the lookout for hot new venues. “This is nothing new or different,” Baker said. “It’s just the venues have changed from year to year. I think what people are looking for are these factors that Marshall has — access to a large metropolitan area, judges who are willing to accept these cases and a fast track. Word gets out and the next thing you know there’s a lot of cases being filed in a particular area.” But a court’s popularity has its limits, he added. “What happens in the natural consequences of this is either courts announce delays, or lawyers start noticing that their cases get put out further,” Baker said. Patent attorney B. Todd Patterson of Moser Patterson & Sheridan in Houston, has noticed just that. In recent years, he has settled four cases as defense counsel in patent infringement cases in Marshall. Currently, he’s the lead plaintiff’s counsel in another patent case, and he’s consulting on a fifth. “They’re getting backlogged,” Patterson said of Marshall. “Now we’re seeing a little more time to get to the scheduling order.” San Francisco attorney Henry Bunsow, who has eight patent suits pending in Marshall, said he has no trouble convincing clients that it is a good place to do business. “I tell them, ‘We’re gonna get a fair shake in Marshall, Texas, and we’re not going to have to wait forever,’” he said. Then he points out the financial advantages. “And you can cut legal fees in half by going to Marshall, Texas,” he said. “If I have a choice between a Chicago or a New York, I’m certainly going to pick Marshall.” JUDGES ARE THE KEY So what’s the big legal attraction in a town whose claim to fame is an annual fire ant festival? The judges, lawyers say. Specifically, District Judge T. John Ward, who joined the bench in 1999 and helped create what is known in legal circles as a rocket docket for patent cases. He did this by adopting rules that encourage the setting of quick trial dates and firm discovery deadlines. And where there have been discovery disputes, he has made himself available. But more than all that, lawyers say, what may perhaps be Ward’s strongest trait is that he actually likes patent cases. “That to me is the big deal. You could have a rocket docket in Minnesota or New Jersey, but if the judges don’t like patent cases, it doesn’t make sense. These [Marshall] judges say they like them and they act like they like them,” said attorney Daniel F. Perez of Winstead Sechrest & Minick in Dallas. Perez is representing ConnecTel of Miami Beach, Fla., in Cisco. While he is a plaintiffs’ attorney in Cisco, he has served as a defense counsel in three other patent suits in Marshall, all of which settled for undisclosed amounts. Given his experience on both sides of the docket, Perez believes Marshall is a fair venue for both plaintiffs and defendants. Baker, who has defended several computer manufacturers in patent suits in Marshall, credits Marshall’s judges for establishing fair ground rules. “They don’t put up with any discovery disputes or any shenanigans,” Baker said. “Some federal judges make it very well known that they don’t like to hear these cases.” Baker noted that some defense attorneys are afraid to try cases there because of its pro-plaintiff reputation, which he disagrees with. He said that the rocket docket also turns off some defense lawyers who feel pressured to produce evidence quickly, leaving little time for preparation. “People have portrayed [Marshall] as a fear factor: ‘Oh, this is a terrible thing. These people are abusing the judicial system. It’s unfair.’ Well, I don’t agree with that,” Baker said. “The only advantage [for plaintiffs' lawyers] I see is that they can get them to trial quicker. But as a defense attorney, there are ways you can deal with that if you’re a competent lawyer.” Baker said that Marshall’s large elderly population also provides a good jury pool for intellectual property cases. “There are a lot of old people who don’t have a problem with sitting weeks at a time and listening to complicated issues,” Baker said. “But in Houston, you have people who are fighting to get out of a trial.” Judge Ward admits he’s pretty busy these days. But he’s not burned out, at least not yet. “I’m sure I’ve got more than I need. But I don’t know what the numbers are,” he said. “It’s obvious that they’ve increased.” Ward noted that if speed is a big factor for lawyers, then they may end up slowing down the process. “There is a limit to what three of us can do,” he said. “I think [the wait] will become longer as this load continues.” Recently, Ward, who used to handle 90 percent of the patent docket, got a little help when the court reconfigured the schedule. Ward now gets 60 percent; another judge gets 35 percent and a third gets 5 percent. Ward doesn’t see himself as any kind of patent hero, but he does admit having an affinity for these cases. “I find these cases more interesting than a drug case involving small amounts of crack cocaine. I think they’re intellectually challenging,” said Ward, who also appreciates having patent lawyers in his courtroom. “I find that most patent lawyers are always well prepared,” he said. “When you have a hearing, you know they’ve done their homework very well and it’s intellectually challenging for me to deal with these problems.” New York patent attorney Edward Vassallo had a brief experience in Marshall. Four months ago, he successfully got his client, a New York electronic trading company, out of a lawsuit in Marshall by arguing lack of venue. The case, which involved software systems patents, named several defendants and is still pending. Datamize Inc. v. Fidelity Brokerage Services, No. 203-CV-321. Although impressed by Marshall’s judges and the speed of the docket, Vassallo said he wouldn’t go back if he had a choice. He felt the jury pool was weak. And he believes that many plaintiffs’ attorneys are stretching the jurisdiction argument, making weak claims that their cases should be tried there. “I don’t think [Marshall] would be first on my list,” said Vassallo, a partner at Fitzpatrick, Cella, Harper & Scinto. “If the case had a contact with that jurisdiction, then perhaps. But I think so many of the cases are there on a reach.”

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