In December 2011, Rodney Gilstrap took the bench as the U.S. district judge for the Eastern District of Texas’ Marshall Division, which has one of the busiest patent dockets in the nation. Texas Lawyer senior reporter John Council caught up with Gilstrap on Oct. 25 at the 2012 Eastern District of Texas’ Bench/Bar Conference in Plano. In the interview, Gilstrap discussed his first year on the job, how the America Invents Act affects his docket and how he ensures the speediness of claims-construction rulings in patent litigation. The discussion appears below, edited for length and style.
Texas Lawyer: Judge, you’ve been on the bench for just about a year, and I think the biggest question everybody has about Judge Gilstrap is: How much are you like your predecessor, T. John Ward, who built up the patent docket in the Marshall Division and made it one of the busiest patent courts in the country? How have you been adjusting to the bench so far?
U.S. District Judge Rodney Gilstrap, Eastern District of Texas, Marshall Division: So far, it’s the greatest job in the world. I really love it. It’s something that I had hoped to be fortunate enough to be able to have at some point in my career, and, thankfully, a lot of pieces of the puzzle aligned properly, and last December I was sworn in, and it’s been everything and more than I’d hoped it to be.
TL: I guess most people want to know how much you are copying your predecessor, Judge Ward, and then maybe where you are different than Judge Ward? So if I walk in Judge Gilstrap’s court, how much different is it than Judge Ward’s court?
Gilstrap: Well, based on procedures and approach and practical things, the majority of [my] practice before going on the bench was in the Marshall Division, so I was used to that way, and, therefore, there are a lot of similarities. There are a few things that I’ve tweaked or done a little differently. But, I think if somebody were to walk in, they’d be aware that it’s a whole lot more that’s the same than it’s different.
TL: For example, I think Judge Ward used to have a policy of seating 10 jurors in a trial. Have you kept that policy, or are you sitting eight jurors?
Gilstrap: Most of the civil trials, including the patent cases, I’ve sat eight jurors.
TL: Another thing that’s a pretty big deal is that when you took over, the America Invents Act was just starting . . . and I’m wondering how the America Invents Act is affecting your docket so far?
Gilstrap: Well, the AIA, as we call the America Invents Act, went into effect September 2011, and I came on the bench in December of 2011. But all district courts in the country that have that as any part of their docket in the patent area have been adjusting, as well. Even the most experienced judges have been adjusting differently. The biggest practical impact is, before the AIA, you could file patent cases with multiple defendants in the same suit. Now, under these provisions, you have to have one defendant per patent suit, and they are entitled to a trial on a defendant-by-defendant single basis.
TL: I noticed when you took the bench that patent filings were about the same in your division or that they had even increased. Are you seeing that continue, and, specifically, are you seeing more cases split up against individual defendants thereby making your docket load even heavier?
Gilstrap: Well, I can’t give you an exact answer, but the general trend seems to be holding steady or it’s slightly on the incline. Some of that is because we’re having separate filings, whereas you had multiple defendants in a single filing before. But if you boil all of that down, the bottom line is it looks like filings have stabilized, and filings are at or are slightly above where they used to be.
TL: I also understand you are doing things differently as to how you approach Markman hearings or claim-construction hearings. Talk to me a little bit about that.
Gilstrap: Well, I’m regularly employing the assistance of technical advisers that I appoint to assist the court with the technologies that are involved in each case and in each upcoming Markman hearing. I’m also trying to get rulings out as quickly as I can after the oral argument on the Markman because that’s where the parties really know “this means this” or “that means that.” And, once they have that, that framework and guidelines, they can evaluate seriously where they stand in their case and evaluate and determine what it really looks like. Before that, they really don’t have that ability. And, trying to get those out quicker, we’ve adopted a practice and it’s not every time — sometimes we’ll do it the traditional way — but many times we’ll issue a provisional claims-construction order where we say, “Bare bones, this term means this.” We won’t put in all of the analysis; we won’t put in all of the authorities. We’ll give them the skeleton, but not all of the meat-on-the-bones version. And then I order them to go to mediation within 30 days of that. That gives them time to know what the definitions are, apply those to what they understand the facts to be, and make a serious and accurate evaluation of their case.
TL: [In w]hat type of case would you be most likely to use a provisional claims- construction order?
Gilstrap: I think there’s not any hard-and-fast direction I can give you. Obviously it’s only going to apply in the patent area. It’s just a matter of trying to facilitate a ruling as promptly as possible. If I can get the complete ruling out promptly, then I’m inclined to do that. If, because of the other demands on the court’s time and trial settings that are coming up, if I don’t have time to get out the full ruling, I may get out the provisional ruling that gives the basic definitions. But the target I’m shooting for is to get that out promptly. They can make an accurate assessment of where they stand with their case, evaluate it accurately and then go to mediation to see if they can work it out. If they go to mediation having gotten a provisional opinion on the Markman and can’t resolve the disputes in the case, then I will issue the full Markman opinion with the authorities, with the analysis, so that’s there and in the record. But the goal is to get that out promptly, so they can make that evaluation.
TL: Another area of the law that the Marshall Division has been very influential on is the area of transfers and transfers in patent cases. You’ve been on the bench long enough to [have] an idea of when a case will stay in the Marshall Division and what type of case will be transferred out. Can you give me an idea of what kind of case will be transferred out of the Marshall Division?
Gilstrap: Well, when you’ve got a transfer motion, you’ve got to analyze it under §1404(a) [and] look at the convenience factors, both public and private. But, at the end of the day, it’s a commonsense approach: Are there really material contacts between those folks and this district and this division? If there are, then it ought to stay. If there aren’t, if they are really ephemeral, if they are really contrived, then that’s something different, and I’ve not been reluctant to transfer cases where I really didn’t feel like there were adequate contacts. Where there are, I think the plaintiff’s choice of venue should be honored, and, if you’ve got those contacts, then you deny the transfer.
TL: Judge, you’ve had several patent cases that have gone to a jury so far. And I’m kind of wondering what you’re seeing of these jurors from the bench? The reputation is the jurors in the Marshall Division tend to be a little more plaintiffs-oriented. . . . Has that borne out in the cases that you’ve seen?
Gilstrap: So far, I’ve tried three patent cases before a jury to a verdict, and we’ve had a range of results. We’ve had some patents in suits that were found to be non-infringed, we’ve had other patents in suits that were found to be infringed, and we’ve had some infringement that was found to be willful and others not. So we’ve had a smattering of results kind of across the board over the course of the three trials I’ve tried to a verdict so far. Obviously, with additional time and additional results, I may be able to see a better trend than I see now. But clearly right now, it’s not all one way or all the other way. What the overall trend would be with a bigger database to look at, I can’t tell you at this point.
TL: . . . What tip would you give a lawyer on how to best get along with Judge Rodney Gilstrap?
Gilstrap: Be brief, be genuine and honest, and be respectful to the court as an institution.