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| Doug Cawley of McKool Smith quoted in Texas Lawyer newspaper article Eastern District Rocket Docket Decelerates in Marshall Division |
| Cases Filed Now May Not Get Trial Dates Until Late 2011 or Early 2012 |
| August 18, 2008 |
The voluminous filings of patent cases in the U.S. District Court for the Eastern District of Texas in Marshall has slowed the "rocket docket" that Judge T. John Ward launched in early 2001 by promulgating rules meant to expedite the disposition of patent infringement suits.
Jeffrey Plies, an intellectual property litigation associate with Dechert in Austin, says the Eastern District has become a victim of its own popularity.
"It's attracting a lot of patent cases, but that's meant it's drowning in its own success," Plies says.
Plies says Dechert filed a patentee's suit in the Marshall Division on Dec. 31, 2007. At a July 29 status conference, Ward set the case for trial on June 6, 2011, he says.
It wasn't an isolated case. U.S. Magistrate Judge Chad Everingham of Marshall says he and Ward held July 29 status conferences for about 30 cases, the bulk of which were filed in the latter half of 2007. Trial settings for those cases are in the summer of 2011, Everingham says.
Everingham says his best guess is that cases being filed now will be set for trial in late 2011 or early 2012.
Appointed to the federal bench in 1999 by then-President Bill Clinton, Ward adopted rules for his court in early 2001 to speed up the handling of patent cases. Ward says the rules he adopted are a modified version of the patent rules used by federal courts in the Northern District of California. In 2005, the other judges in the Eastern District - which includes courts in Beaumont, Lufkin, Marshall, Sherman and Texarkana - adopted those rules districtwide.
Ward attributes the current long delay between the time patent suits are filed and the time they go to trial to the large number of case filings.
"There are just so many cases, I can't handle them all," Ward says.
The Eastern District of Texas had the highest number of patent suits filed in the United States in the last fiscal year, which ended Sept. 30, 2007. According to statistics provided by Dave Maland, clerk of the court for the Eastern District, plaintiffs filed 358 cases in the district last year, compared to the 334 filed in the Central District of California in Los Angeles, the runner-up, for the same period.
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Patent litigator Doug Cawley, a shareholder in McKool Smith in Dallas, says the U.S. Congress has tried in its last three sessions to pass legislation that included provisions to limit forum-shopping by plaintiffs. Cawley, who follows such legislation, says the House passed H.R. 1908 in September 2007 but the Senate could not come up with a bill that would pass in that chamber.
Michael C. Smith, who also monitors patent legislation, says U.S. Sen. Patrick Leahy, D-Vt., abandoned the Senate's version of the bill, S. 1145, in April after determining that he did not have enough votes to win passage.
"The legislation doesn't appear to be going anywhere in this Congress," says Smith, a partner in Siebman, Reynolds, Burg, Phillips & Smith in Marshall.
Cawley says he believes such legislation is unnecessary because of the length of time it takes to move cases to trial in the Marshall Division, combined with the fact that defendants are having good experiences with judges and juries in the Eastern District.
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