U.S. District Judge Leonard E. Davis, Eastern District of Texas (Danny Hurley)
SAN FRANCISCO — If plaintiffs seem eager to file patent cases in the Eastern District of Texas, there’s a reason. But the chief judge thinks it may no longer be a good one.
“I think we’re more prone to a jury trial than some jurisdictions are,” Judge Leonard Davis acknowledged at a discussion Monday among four patent-savvy jurists.
By contrast, patent cases tend to get resolved on motions in the Northern District of California. “Here, we don’t try a lot of cases,” said Judge Jeremy Fogel, who spent more than a decade on the federal bench in San Jose and is currently on leave to the Federal Judicial Center. “We didn’t set out to do it that way. That’s just our culture.”
But that doesn’t mean patent holders ought to keep filing so many cases in the Lone Star State. Despite its “reputation of being a plaintiff’s hellhole,” Davis said, defendants prevailed in 11 of 13 cases that went to trial in the Eastern District last year.
“The reason is [defendants] have finally figured out they need to get ready for trial, not summary judgment,” Davis said.
Davis and Fogel appeared alongside Judge Susan Illston of the Northern District and Sue Robinson of the District of Delaware. Weil, Gotshal & Manges partner Edward Reines moderated the panel for the Northern District Practice Program.
Davis joked that he was delighted to be in San Francisco. “I have so many motions to transfer, it’s great to come out and see what’s so appealing.”
He said he regularly sees litigants spending $500,000 to $1 million battling over venue. “To call it what it is, it’s forum shopping,” he said. Litigants typically claim all their witnesses are nearby, but when cases actually go to trial, “I’ve yet to see more than a few of those people.”
Fogel warned against embellishing claims about the suitability of judges in other districts, such as their experience with a particular patent. When faced with such claims, he would often pick up the phone and ask the judge if they were true.
Changes in the management of patent cases are underway in both districts. Davis said his district’s rules are probably geared too much toward big, high-stakes cases. The district is considering establishing a “track B” for smaller cases that would set earlier dates for infringement contentions and disclosure of licensing and sales information.
In the Northern District, meanwhile, judges tentatively decided last week on a plan for coordinating related patent cases within the district, Illston and Fogel reported. The judge first assigned to one of the cases will coordinate all pretrial proceedings, including a Markman hearing. Cases will be returned to their original judges if they wind up going to trial. That last part was the key, Fogel said. “There was concern that if you were the judge with the low number, you’d get 40 cases and you’d have to try them all.”
Delaware’s Robinson, who just presided over a patent trial between Google and Intellectual Ventures, outlined a couple of other concerns. One is that e-discovery may be creating information overload for juries. Lawyers “ask for the sky, but when they get the sky, it’s that much harder to figure out what is and isn’t important,” she said.
The other concern might be called troll fatigue, though she didn’t use those words. “There are certain plaintiffs and certain kinds of defendants,” she said. “And these certain defendants are so upset—offended, maybe—at being sued … over and over and over again. At some point their cooperation in the discovery process becomes null.”
But if litigants overstep, don’t expect it to lead to an “exceptional case” finding and an attorney fee award. Davis noted that the Federal Circuit has set “a very, very high burden” to meet Section 285 such that “any lawyer at all … can cobble together an argument” against awarding them.
Fogel noted that many observers expect the Supreme Court to soon lower the standard. “That said, I still don’t think it’s going to happen very often,” he said, “because most judges don’t like imposing sanctions.”
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