I have started summarizing and narrating the day's weblog posts in an audio format for readers that want to take advantage of a few minutes to hear what's on the weblog today before getting to their computers. I start by summarizing the posts so you should be able to tell quickly whether they are of interest to you. Seems to run a little over a minute per post.
Next week will be nearly as busy as this week, as I will be speaking in both Houston and Austin on issues generally revolving around the December 1, 2015 amendments to the discovery rules in federal court.
I have posted previously on the Dallas and San Antonio sites, but next Wednesday morning I will be presenting my Federal Update paper at the State Bar Advanced Civil Trial seminar at the Westin Oaks in Houston. The paper focuses on the effect of the new federal discovery rules, drawing on Professor Lonny Hoffman and Anna Rotman's paper on this topic from the prior year, with a liberal helping of Fifth Circuit cases courtesy of David Coale's 600camp.com weblog.
Which is a good thing because the next day I will be on a panel with David and U.S. District Judge Xavier Rodriguez of San Antonio in Austin, FRCP 26 and New Discovery Trends, which will be drawing on, let me see, Prof. Hoffman's paper again. (Now how did that happen?) The panel is part of UT Law's 39th Annual Page Keeton Civil Litigation conference, which will be held October 29-30 at the Four Seasons Hotel in Austin. You can see the program agenda and register online at www.utcle.org/conferences/PL15.
To paraphrase President Kennedy, the latter will be the best explanation of recent developments in federal discovery rules with the possible exception of when a UH student leaned into Professor Hoffman's office last week and said "Dean, what's up with all these new rules?" (Professor Hoffman is shown in hard core law prof mode testifying before the House Judiciary Committee three weeks ago on pending legislation involving the removal statutes. He's against it, but appreciated the bottled water).
Just a reminder that the 2015 ED Bench/Bar starts tomorrow at 3pm in Plano with a panel on oral argument featuring judges from the 5th Circuit, Federal Circuit and EDTX. I am up third as a member of a panel "Local Rules & the Local Rules Process. When & Why Did ED Texas Adopt the Patent Rules of ND California?" so if that topic interests you - and honestly, how can it not? - I look forward to seeing you. History and local panel rules - I'm getting goose bumps already.
Of course you might also enjoy the golf outing tomorrow afternoon or the East Texas Shooting Excursion cosponsored by Siebman, Burg, Phillips & Smith and Haltom & Doan, all of which are followed by the opening reception, which includes tastings of Texas bourbon. Which may be where I may find a successor to the venerable Ancient Age that my late grandmother loved so dearly. (If you haven't tried it - don't. The reviews are not glowing, and the comments are quite emphatic - see here. The kindest review likened the bouquet to nail polish remover, and suggested foisting it only on taste-impaired drunk friends. I had no idea the Marshall ladies' bridge club was this tough back in the '50's and '60's. Now I know why the finish is eaten off Mom's old bridge tables).
But regardless of which you attend, come on out. It's going to be a great conference.
I'm the only person that I know that is comfortable typing on the on-screen keyboard on an iPad, but I have now switched to a portable Bluetooth keyboard, mainly so that the keyboard no longer takes up half the screen.
Unlike most iPad keyboards, it is not part of my iPad's cover, but instead is a separate, ultrathin device which lies conveniently next to my iPad in my bag. It doesn't act as a stand, but if your iPad cover handles that, as mine does, that's not a problem.
It charges through a micro-USB the three or four times a year it needs charging and doubles as a keyboard for my phone and Apple TV at home (which doesn't work, but that's a whole other story). I was intending to get a keyboard that could switch between phone, tablet and desktop, but when I saw this much smaller product which would add virtually no bulk when traveling, I opted for it instead, and have been very pleased. With it, I often don't bother taking out my laptop when traveling, since I can do very nearly everything on the tablet, since even text entry is now quick.
Just ran across this infographic about federal court system recently published on Online Paralegal Programs: “Understanding the Federal Court System” http://www.online-paralegal-programs.com/federal-court-system/ Has some useful information, and the graphics are well-done.
The avatars of the various federal court employees in particular are terrific. IT guy - check.Courtroom reporter looking down at her machine - very nice touch. The prosecutor looks a bit depressed, the probation officer is having a great day, and the legal secretary is, candidly, frightening. But a nice attempt to put faces to the job descriptions - even if they do still need a bit of relabeling to fit the folks I see at our courthouses.
As readers will recall, Judge Gilstrap conducted a jury trial in this case in June of this year, and the jury returned a verdict finding that the asserted claims were not invalid, were infringed and willfully infringed, and assess damages through trial at $31,500,000. Yesterday Judge Gilstrap ruled on defendant ZTE's motions for judgment as a matter of law on the issues of priority date, validity, and claim construction, denying all three. The court carried the damages issues to a later date
Google stacked a second win this fall in Marshall with a win on noninfringement in Simple Air v. Google, which dealt with notifications to Android phones. A Marshall jury in Judge Rodney Gilstrap's court returned a verdict of no infringement, but patent not invalid. Simple Air had been seeking $146 in damages.
For example, in New Patent Infringement Lawsuits in East Texas Shatter Records, reporter Jeff Bounds with the Dallas Morning News noted that "there were more lawsuits alleging patent violations filed in the Tyler-based courts during the second quarter of the year than in all the other federal courts across the country combined. From April to June, lawyers shattered all records when they filed 839 patent infringement cases in the Eastern District of Texas." (Emphasis mine). The article correctly went on to identify the cause - what it calls the "high-volume plaintiffs" accounted for 650 patent cases in the Eastern District in the second quarter, or 77 percent of the new caseload. ("High volume" means those were only a few plaintiffs/asserted patents, but many defendants sued per patent). And even more correctly, it indicated that the trend may have been related to indications that Congress might pass additional legislation relating to patent cases.
But the point that might be missed in the scramble to identify a "trend" is that as some judges are wont to observe, context matters. The impact of indications of potential activity by Congress may not have been to cause filings so much as to push some filings that would otherwise have occurred in the third quarter up into the second, in much the same way that the passage of the AIA in 2011 front-loaded that fall's filings into the summer. Or the way that the Alice opinion reduced filings late last year, but then filings came back up in the first quarter of this year. Texas practitioners certainly see the same cycle every two years when plaintiffs have to decide whether to file all their cases before the laws enacted by the most recent session of the Texas Legislature go into effect, usually on September 1. Unlike Congressional action, Texas statutes typically take effect 90 days after the session ends, regardless of when they are passed or signed into law. Not always, but typically, so the end of August is perennially decision time for attorneys representing potential plaintiffs in Texas when they have to decide if they are better off under the old or new law.
So for the same reason that the filings in the snapshot that is the second quarter probably didn't really accurately reflect the overall docket activity, potentially neither will the third quarter, when plaintiffs' cupboards were likely relatively bare as a result of the accelerated activity in the second quarter.
Interestingly, the eDekka cases that were recently dismissed by Judge Gilstrap on 101 grounds were filed during the second quarter, so if you have nothing better to talk about during coffee breaks, speculate on whether the successful resolution of the cases on 101 grounds had anything to do with that. Keep in mind that 103 of those cases were filed in 2015, all in the second quarter, with 41 being filed in the last two weeks of the period. So did the potentially accelerated filing decision affect the decision of whether to file? In much the same way that, let's say, a quarterback under pressure might make decisions that cause faces like this? (Yeah, I know he's our quarterback now but I'm not posting a picture in a Cowboys uniform till he wins a game. And it's not looking promising for a while).
And here's another thought for tea time later in the day, for those of you that are into that sort of thing. Maybe the downtick in filings really does indicate that there is a long term change in filing strategy by high volume plaintiffs either as a result of consideration of potential Congressional activity (people sometimes really do change their conduct when Congress begins deliberating on an issue) or as a result of a better appreciation of the effect of Alice or of courts' rulings under Section 285 following Octane Fitness. Hmm. Talk among yourselves about that one around the firm. (Try to look this fabulous when you do it, if at all possible. True story - a couple of years ago my wife and I, who is a big-time Suits fan, sat next to Gina Torres on a long flight. She really does look that fabulous in person. Just killed the boot-cut jeans and tailored jacket look).
But I digress. My final point (as my priest says, that usually means I only have three more - yeah, Father McLaughlin, I'm talking about you) is that it's not a "trend" till you see the same thing for at least two quarters - and possibly three. As long as the "trend" changes direction each quarter - it's not a trend. Come January I think we will all know a lot more about what is really happening with filing trends, and the rulings that may help shape them.