At the conclusion of the first quarter of this year I posted on the filing trends I was seeing in the Eastern District's patent cases. In short, filings were down substantially, with the major portion of the decrease coming from bulk filers (the top three were down 94%). Looking at statistics after the second quarter, the trend is continuing. Although the Eastern District is seeing the same "bounce back" in filings as other districts in the nation, as discussed in this very good article by Gabe Friedman in Tuesday morning's Bloomberg Law, the filing rate is still down approximately 40% from last year. (There is another article out today in Texas LawBook - East Texas Patent Litigation Still Hot But No Longer Boiling by Jeff Bounds that makes the same point, noting that filings are down almost half in the first six months of the year).
Gabe's interview with Lex Machina data analyst Brian Howard also provides a useful metric that confirms what I have been seeing, which is that the reduction in filings is coming from what he calls "high volume" plaintiffs, i.e. those which had filed more than ten suits the previous year, and not in other more traditional patent cases (which is supported by the fact that a substantial percentage of recent trials are in "competitor cases" and not cases filed by a non-practicing entity. The chart below from the article compared high and low volume filings in recent years in Delaware and EDTX. There are three observations that I think are worth making here:
- Bulk Filer Cases Down - note the downward trend in recent quarters in the district's "bulk filer" filings following last fall and this spring's 101 grants and awards of attorneys fees under 285 in prominent bulk filer cases in the district.
- Traditional Patent Case Filings Up - also worth noting is the steady increase in the non-bulk filer cases over the last year and a half, which does not have the dramatic up and down swings caused (presumably) by the federal rules changes and 101 and 285 rulings of the past year.
- Fewer Bulk Filer Cases Than Traditional Cases- most notable of all is that the second quarter of 2016 marks the second consecutive quarter that "high volume/bulk filer" cases made up less than half of the patent filings in the EDTX.
So what do you do when you have on average 100 fewer patent cases a month being filed? Well, changes in filing trends and judicial capacity manifest themselves in a couple of ways on the ground - changes in judicial case assignments and in local procedures.
The last time the district had a new case assignment order was in late 2014 just before the two most recent district judges came on board, providing the district with a full complement of eight district judges. That lasted three months before the district lost one judge to senior status, then two months later another to retirement, and then at the beginning of this year to senior status about to mature into retirement, leaving the district with five active judges and two senior status accepting new cases - and three judicial vacancies of the eight judgeships assigned to the district.
For patent practitioners, the most notable effect of that 2014 assignment was that Judge Gilstrap and Judge Schroeder shared the Marshall, Texarkana and Tyler patent dockets, with Judge Gilstrap having 80/20/30 and Judge Schroeder having 20/80/70, respectively.
Last week Chief Judge Clark issued a new case assignment general order which reflected the most recent senior status change in Tyler, where Judge Schneider's departure from active duty means that for the first time since at least 1947 (with the exception of the brief vacancy in 1968 after Judge Sheehy passed and was replaced by Judge Justice) Tyler has no active federal district judge. Tyler's patent cases were already being covered by the judges from Marshall and Texarkana - the change is that Judge Schroeder will also plug the hole in the civil docket, and Chief Judge Clark will plug the hole in the criminal docket.
Presumably the downtick in new patent filings as well as dropping his share of the Marshall docket from 20% to 5% gives Judge Schroeder the capacity to handle some additional Tyler work. Judge Clark gets there by handing off the half of the Sherman civil docket he had to Judge Mazzant. Judge Clark still has 35% of Beaumont and 100% of Lufkin.
Like judicial assignments, local procedures change on a regular basis based on experience and the demands of a changing docket. With the number of patent cases decreasing, and more going away sooner than scheduled for various reasons (101 dismissals, transfer, and getting Ruby Sand-ed come to mind) some of the more "emergency" procedures that local judges have adopted are going away as well.
For example, several months ago Judge Gilstrap discontinued the use of letter briefing for 101 motions, and more recently the "in person" meet and confer requirement for discovery motions was removed from pending and newly-filed cases. This week he issued new docket control orders for patent cases which also discontinued letter briefing for other types of summary judgment motions in patent cases, and replaced them with requirement for submission of paper copies (with some electronic requirements as well) in the court's preferred format.