Troll Tracker comments on Patently-O post

Dennis Crouch and whoever Troll Tracker is and I are having a nice discussion about Dennis' post about the Eastern District's patent docket yesterday morning.  TT posted this morning disagreeing with Dennis' thesis (I'm not sure whether he'd seen mine when he posted, but I'm guessing he had) and I had a couple of followup points.
Weinstein & transfers
First, I agree with TT that the Weinstein decision really isn't relevant to the issue of transfers in patent cases, for the reasons I pointed out yesterday (but it isn't a products case).  But on the issue of appealing a venue decision citing In re VW II, there are a couple of considerations (I represented the plaintiffs in that case on appeal, so keep that in mind reading the following - readers know who I am and what I do for a living, and I welcome your consideration of that when decide whether what I write is fair.  But for those of you that were wondering, that's why I haven't posted on that case.  Who wants to hear what the losing party says is wrong with a court's opinion?). 
First, the VW I opinion was the subject of mandamus of a venue ruling in a patent case to the Federal Circuit a couple of years back (claiming as here "hey, look, this new Volkswagen case says these cases should be transferred) and while the FC applied the regional circuit's law, it had no problem affirming the district court' exercise of its discretion.  Compare the FC's opinion in that case to the two opinions in the VW II case - the first panel affirming the court's decision and the second panel reversing it - and see which it comes closer to.  The first panel applied the mandamus and the abuse of discretion standards in a way that closely mirrored what the FC did when it looked at these issues.
Which brings me to my second point.  In an article that appeared today in Texas Lawyer and on law.com, former ED Tex. U.S. Attorney Matt Orwig, now working patent cases for the Sonnenschein firm, characterized In re VW II (correctly in my mind, obviously) as an activist opinion, and it's pretty clear that if it stands it can be a pretty major change in the law (depending what parts are dicta and a lot of other things, but's let's assume for purposes of argument that it is) as reporter John Council posits.  (I said it set aside a half century of established caselaw, but let's discount me and listen to Matt's comments - anytime a respected six-year Bush appointee calls a court "activist" it's worth noting).
Now fast forward to the Federal Circuit looking at this opinion on mandamus of the denial of a motion to transfer in a patent case from a district that from its perspective is doing a pretty good job handling a massive chunk of the patent docket (whether it's fifteen percent of the cases or a third of the defendants, as TT claims is the appropriate test).  Is generating a miniscule number of appeals for the number of patent cases it is handling, and reversals on any ground are rare.  Win rates at trial are well below the national average - in fact the most common appeal is of judgments following a case-dispositive Markman in defendant's favor), so there's no need to get medieval on their docket, as the Fifth Circuit apparently thinks the interests of justice require in PI cases.
First, the FC appears to follow the traditional mandamus standard - the Fifth Circuit, at least in this opinion, appears not to - something that becomes clearer when you trace its recent venue cases - looking back at In re Horseshoe in particular.  Second, the facts of the case and the basis for the holding deal with a car wreck case (it was actually a product liability case, but the court ignored that part for purposes of the opinion, as far as it was concerned, this case was a "he said / she said" arising out of a collision).  It'll be difficult to take the facts of that case and analogize it to a patent case because the facts, no matter how you slice them, never involve dozens of important nonparty fact witnesses clustered in one city, and no witnesses anywhere else, as the Fifth Circuit claims are the facts are in that case.  You can always spin a products case that way by claiming the plaintiff or a third party was negligent, and some judges buy that argument (and sometimes it's even right) but it would take a judge wholly unfamiliar with patent cases to believe for a second that that's what's typically involved in a patent case.  I;ve worked on close to a hundred patent cases and I look at the venue facts in almost every one, and with one exception (in which Judge Ward transferred the case) I have yet to see these facts.  Patent cases are transferred, but it's usually because of some preexisting dispute - this basis just rarely comes up.  Third, as I mentioned above, there are major questions - raised by the second VW II panel itself - about what the law is on these motions and what is and is not dicta on these issues. 
The reason I bring that last point up is that in the past, the FC has obviously gradually expanded the scope of when it follows its own law as opposed to regional circuit law.  For example until a few years back it applied the regional circuit's law on personal jurisdiction and venue (meaning whether venue is proper, not 1404) which was something for years Judge Folsom had to keep reminding us, because we kept citing Fifth Circuit cases on these issues.  It later decided to apply its own law on these issues, but still applies regional law on 1404 motions.  For the moment. 
But what happens when a case like this comes up where the regional circuit decides to make major changes to 1404 law in general tied to a non-patent cause of action?  Would the Federal Circuit struggle to apply that law - as confused and contradictory, and result-oriented as it is now is, not to mention closely tied to facts that don't have anything to do with patent cases - to patent cases, or will it toss the whole mess out (cutting the Gordian knot would actually be a more accurate metaphor) and decide to create and apply its own law, perhaps using as a template what every other circuit since the adoption of 1404 in 1948 have held to be the law? 
It's not unlikely to me at least that In re VW II will have the effect of pushing the FC to drop reliance on regional circuit law on 1404 motions entirely, and whatever it comes up with will apply the traditional mandamus standard, and probably won't have the naked animus that the Fifth Circuit has for plaintiffs in personal injury cases (I was at the podium in that case, and I know from whence I speak - I longed to represent the drug-dealing, child-porn watching criminal defendants whose lawyers argued before me, and not the family of a paralyzed grandfather who crushed his granddaughter's skull when his seat back failed and laid down on her in the back seat when his car was struck from behind).
I won't speculate that the FC follows regional law until it disagrees with it, but those of you who know them better than I do probably have an opinion on that.  And recall that it took the Fifth Circuit decades (and a panel reshuffle) to overcome the traditional deference to trial courts' discretion in these cases, and I just don't see anything remotely approaching that from the Federal Circuit.  We can debate what they really think about the Eastern District's patent docket, but as Texas practitioners will tell you, there's no corresponding debate about the Fifth Circuit and personal injury cases.
Whatever the opinion's merits, I think that the Federal Circuit will find VW II offensive to traditional notions of standards of review, faithful application of precedent, and basic fairness to litigants, and they'll either distinguish it by following mandamus standards of review, or on its facts, or they'll stop applying regional precedent on this issue altogether, and come up with their own analysis based either on the factors that courts have traditionally considered in the past sixty years, or the factors that are really relevant in patent cases.  I'm not saying that they couldn't follow it, and that it couldn't give some guidance - I'm just saying that there are reasons why it may not have the dramatic effect on patent cases that some are contemplating.
The best analogy that I can give (which may not make much sense to the FC) is that pigs get fat, but hogs get slaughtered, and while VW I was arguably just a pig that can stay fat and happy and part of the family, it's highly possible VW II is a hog, and as such, will get taken out back and quietly get put down.  (Maybe like this. There, I feel better now).  I really have to explain the analogy, which is that being greedy up to a point just makes you a pig, and that's okay, but when you go beyond that you become a hog, and we know what happens to hogs.  I frankly don't understand the analogy myself because we slaughter pigs too, don't we, but it's a common analogy around here and everyone understands (and I eventually did as well) that it means that being too greedy has bad consequences, and I think that's precisely where VW II falls.  Courts that have to follow it (and can figure it out) will, but I think that courts that don't absolutely have to are not going to, beyond what they agree with. 
And, the more cases that are filed in a particular circuit (and here TT's argument that # of defendants counts, not # of cases, actually works markedly in plaintiffs' favor, so plaintiffs, let's show some love to the troll-meister here for coming up with the argument) the more pressure I would think would be on them to apply their law rather than the regional circuit, since the regional circuit's law would be having a disproportionate effect on patent cases, governing as it does a third of the parties involved in patent litigation.  Clearly a regional rule that has a major effect on the prosecution of patent cases nationwide would be problematic on appeal, because it would be redirecting patent cases based on factors that are not relevant to patent cases.  At least that's a potential argument in case the FC doesn't like Spawn of Herbie.  And you saw it here first.

Statistics
Moving on to the issue of the stats, I disagree with TT that the number of defendants is a necessarily better way of measuring the filing activity (I don't really care one way or the other since I'm not keeping score - maybe we could compromise by using the weighted filing numbers the AO ises for these cases - I know patent cases have more weight than a normal case, but I don't know whether number of defendants changes it - if it does that's a decent argument that TT is at least partially right), but his overall point that filings are staying up for the moment is accurate, as Dennis notes.  But his claim that "people are drawn because of the jury success rates" can't be the reason any more, because jury success rates have been in the tank for quite some time now, and are currently half the national rate.  And yes, that's true even in Marshall - I think three out of Judge Ward's last four patent cases in Marshall have been defense verdicts).
And I would point out that if you are filing in ED Tex because you think the jury win rate is crucial or abnormally good, file someplace else, because it isn't.  The "jury success rates" are not, repeat, not the reason anybody ought to file here.  (I'm puzzled why anyone would cite a "jury success rate" of 28% as a reason to file someplace anyway).  Get your head out of the statistics and look at the facts of the forum and your case.  File here because we have good judges with a lot of expertise and good procedures that will get your cases resolved efficiently and at a substantially lower cost - for both sides - than somewhere else.  If you have a good case, you'll probably win.  If you have a weak case, you'll probably lose.  Conversely if you have a weak defense try like hell to get transferred to a court that thinks summary judgments and fact issues make a good couple, and trial settings are bad manners.  And if you have a good defense be glad the plaintiff just gave your client a million dollar discount on their defense costs, even if it does mean that you can't win by sheer attrition or a frivolous SJ motion (which your client now won't have to pay for, by the way).  Win rates at trial should be the last thing on your mind.  Worry about the merits, and the results at trial will take care of themselves.
As I have said repeatedly to anyone who will listen, the win rate the district had from 2001 to midyear 2006 was reflective primarily of good lawyers with good cases, and defendants not yet realizing in some cases how crucial it was to have experienced trial counsel - not some characteristic of the judges or the juries.  Right now the ED is demonstrably where bad patent cases go to die, and if it's really the favorite haunt of patent "trolls", well, where else would you want them but following each other off the edge of a cliff so that we can all spend time on cases brought by "real" companies.  It certainly isn't what reporters reported and lobbyists claim - a place where defendants can't win.  Ask AT&T.
But enough editorializing.  Back to a weekend of chasing kids.