The fat patent docket of the Eastern District of Texas is targeted by patent reform bills that would end venue-shopping. Even though the American Intellectual Property Law Association didn't like the idea of a congressional fix, it has found another way to say "enough is enough."
The group has authored a brief supporting an appeal court's smackdown of Judge T. John Ward, the man largely responsible for creating East Texas's reputation as a forum for patent lawsuits that's either "popular" or "infamous," depending which side you're on. In October, a three-judge panel on the U.S. Court of Appeals for the Fifth Circuit issued an unusual writ of mandamus to force Ward to transfer a product liability case against Volkswagen to the Northern District in Dallas, where all the parties were located and the key events-including a car crash-occurred.
This month, the Fifth Circuit will rehear that case en banc at the request of the plaintiffs; apparently many of the judges are eager to weigh in on the Eastern District's habits. The case is on hold until the whole court speaks.
Nearly 80 patent lawsuits were filed in the first three months of 2008 in the Eastern District, far outpacing more populated districts like the Central District of California, which had 58 cases. The few judges in the Eastern District just can't pay enough attention with such a heavy caseload, says AIPLA President Jim Pooley, a partner at Morrison & Foerster in Palo Alto; the district has become "a victim of its own success."
The AIPLA brief is an attempt to see the venue issue handled by the courts and not by Congress. "It's difficult to come up with one statutory formulation," says Pooley. "But an appellate court, in addressing the issue to a lower court, can lay out the factors to consider" more effectively than legislation.
What does the plaintiffs' lawyer against Volkswagen think of the patent bar's move? "It's kind of nonsensical," says Marshall, Texas-veteran Michael Smith, who recently left The Roth Firm for Siebman, Reynolds, Burg, Phillips & Smith. "The AIPLA's brief says it was not happy with a bunch of rulings in patent cases, but of course that's not in front of the Fifth Circuit-those go to the Federal Circuit," says Smith. Smith says that even if this case is moved, it won't have any effect on the Eastern District's patent docket. Venue isn't important in a patent case because it typically involves testimony from experts around the country, Smith says.
There's already some evidence the local judges will see it Smith's way. In late March, East Texas magistrate judge John Love applied the rules that were spelled out in the Fifth Circuit's writ. The case involves a California-based plaintiff suing San Jose-based Adobe Systems Inc., and Washington-based Microsoft Corporation for patent infringement-and Love didn't transfer the case. The little towns of East Texas seem determined to remain way stations of the global economy-toll roads, some might say-whether the patent bar likes it or not.
