In not-so-distant Canton, Texas First Monday means Trade Days , the almost post-apocalyptic world of garage sales and flea markets gone mad. But in nearby Tyler, First Monday means it's time for Judge Davis' monthly patent case status conferences. So yesterday I spent the day working out of our Tyler office and going over for the hearings at 1:30.
The status conferences these days provide a good look into the positively Lovecraftian world of judicial case management post-AIA, where Judge Davis has to juggle pre-AIA cases either already with trial dates or coming up to get them, with post-AIA cases which have single defendants but the same (or an overlap involving some of the same) patents, and which accordingly usually get the same Markman and trial dates (or sequential Markmans in some cases) but which does not - as Judge Davis pointed out yesterday - mean that they are tried together. And that's leaving out the crosscurrents of the pending motions to sever and transfer raising In re EMC and AIA joinder issues, as well as initial dispositive motions raising pleadings issues, dispositive issues and - yesterday's star motion - a sexy little on sale bar number that just hit the docket in one case last Friday. It reminded me of three dimensional chess, except not that simple. At one point Judge Davis sua sponte transferred a lawyer to California. As Lewis Carroll put it, at that point, the jury cheered (and was not suppressed, I must note).
I actually never got around to adding up the number of cases set for conference yesterday, since with the serially filed cases the operative number is more the Markman and trial settings since cases involving the same patents tend to be scheduled so as to share a Markman and jury selection date, even though none have been (or at least were yesterday) consolidated in any other respect. There were seventeen of those. Actually eighteen Markman dates and seventeen trial settings but I won't bother explaining why that was. Has to do with apples.
Yesterday's cases fell into two categories - cases that the parties told Judge Davis could be set on top of the Markman and trial settings of prior cases, i.e. 2/14/13 or 6/27/13 for Markman and 10/6/14 for trial, and those that got their own settings. (A couple of cases had Markmans in November or December of 2012 in prior related cases, but the parties didn't ask for the follow-on cases to be hooked up to that kind of excitement). For the remaining thirteen, they received Markmans in September and October of 2013, i.e 13-14 months from the status conference) and trial settings from November 2014 to February 2015, i.e. 27-30 months from the status conference.
Judges Gilstrap and Payne have another batch of patent cases set for Marshall late this month, and I'll post on when those cases are set for Markman and trial then.