Patent Law

An article by Mary Alice Robbins with the above title appeared in the August 18, 2008 Texas Lawyer with the subtitle, "Cases Filed Now May Not Get Trial Dates Until Late 2011 or Early 2012."  Ms. Robbins writes:

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.

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.

Several patent attorneys attribute the slowdown in the rocket docket to the combination of increased filings and the requirement that courts hold hearings in patent suits to interpret the claims in patents. In 1996's Markman, et al. v. Westview Instruments Inc., et al., a unanimous U.S. Supreme Court affirmed the Federal U.S. Circuit Court of Appeals' decision that the construction of a patent, including terms of art within the patent claim, is an issue of law to be decided by a judge, not a jury.

Everingham says it usually takes him about three hours to conduct a Markman hearing but that he must do a substantial amount of preparation before the hearing. Following the hearing, Everingham says, he must write and issue a memorandum opinion, which can take anywhere from a few days to about 90 days, depending on the complexity of the case.

Smith, who represents plaintiffs and defendants, says the Eastern District judges who hear patent cases are able to do only between 65 and 75 Markman hearings a year - substantially fewer than the number of suits filed annually.

The costs for patent litigation are high, even without delays. In 2007, the median cost of a patent suit in which less than $1 million was at risk was $350,000 through discovery and $600,000 if the suit went through a trial, according to the American Intellectual Property Lawyers Association 2007 member survey. When more than $25 million was at risk, the median cost was about $3 million if the suit concluded after discovery and about $5 million through trial, the AIPLA reported.

Read the full article here.