One of the advantages of having a large part of my docket in the courthouse across the square from my office in my hometown of Marshall is that I know firsthand what the locale knows about the lawsuit from the local media. Usually that's not much - maybe a story the Sunday before jury selection or some coverage during the trial, often influenced by whether the parties are well-known, local, or both.
This week was an exception. When "Rockstar Bidco" - the name for a group of companies including Microsoft, Apple, RIM, Ericsson and Sony who outbid Google for the Nortel patent portfolio, paying $4.5 billion - sued Google and seven companies that make Android smartphones (including AQsustek, HTC, Huawei, LG Electronics, Pantech, Samsung and ZTE) the filing of the lawsuit itself was front page news in this morning's Marshall News Messenger.
A story by local reporter Robin Richardson detailed the allegations in the suit. As is usually the case when covering cases, Robin's article focused heavily on the actual allegations in the complaint. She also tends to pull a lot of quotes during jury selection, openings and closings, rather than riffing on what the case appears to be about - which I appreciate because not all MNM reporters have been so disciplined in the past, and some of their opinionating has been, let's say, less than completely accurate. I had an ongoing disagreement when I was on the city council with one reporter who insisted there was nothing wrong with putting quotes around things she thought I would say if asked, as opposed to things I actually had said. I kind of had a problem with that. Incidentally, Robin also does feature stories for the paper on somewhat less important topics - did I mention she covered my jury box frames this summer? Oustanding story selection ... at least according to my mother.
Susman Godfrey has the case against Google while McKool Smith has the case against the manufacturers.
Joe Mullin over at Ars Technica wasn't as reticent about lobbing some metaphors over the airwaves (so to speak), headlining his story "Patent War Goes Nuclear" and describing Rockstar as the "ultimate patent privateer" and an example of "patent trolling gone corporate." It's a shame this wasn't filed a week earlier - we could have covered it at the bench/bar this week. I sure feel silly for emphasizing yesterday that a Microsoft rep was opposite an Acacia rep on a panel now. Professor Miller was fond of using the phrase "drinking the Kool-Aid" on his panels in referencing to people agreeing on things that are usually the subject of disagreement, and perhaps there were more flavors going around than I was aware of. Anyway - never a dull moment behind the Pine Curtain.
One thing I haven't seen in the coverage of the suit is the obligatory reference to the Eastern District of Texas as "plaintiff-friendly" which would be laughable given that defendants have won 9 of 11 infringement trials this year, with the most recent being (interestingly) McKool Smith's loss on behalf of Wi-LAN against Apple last week in Marshall. And there's a definite trend of juries often invalidating the claims they find not infringed (Wi-LAN being the most recent one). I haven't run the numbers yet but it's at least a third of the cases, and maybe as much as half. We do know that the parties split on invalidity-only trials this year, with my side failing to get an infringement finding in one case before Judge Schneider in Marshall, while my friend Andy Tindel over in Tyler did get one before Judge Mazzant in Sherman this spring. All the other invalidity verdicts I'm aware of were in cases where infringement was also at issue.
We didn't have a panel at the bench/bar this week on litigation outcomes or trends (although Dave Maland and Dan O'Toole from the CAFC and I did cover other recent statistical topics) but I mentioned to a number of people that this year has been an unusually good one for defendants. Although - as I always say - the outcomes of cases are determined by the facts of the case and the quality of the lawyering, so it's always a fool's errand to try to predict outcomes based on past results when it comes to trials. Unless they're sequential trials with the same trial teams (Alexsam being the only example so far) the facts and lawyering are usually going to be variable.
This case also contradicts my recent comments to a lot of people that the cases I'm seeing in the district, while numerous, are generally not as large as they used to be. The cases don't get much larger than these are is expected to be.