2016 saw 19 patent trials in the Eastern District of Texas. Plaintiffs won 43% in the patent-heavy Marshall and Tyler divisions, but the overall outcome was 52% due to three plaintiff wins in the traditionally less patent-intensive divisions of Sherman and Beaumont.
The nine defense wins also saw five invalidity findings, so in almost half the noninfringement verdicts the jury (or in one instances the court) went ahead and invalidated the asserted claims as well.
Court watchers know how rarely verdicts are set aside on postverdict JMOL, but this year saw three. Judge Schroeder set aside the first VirnetX verdict in the spring, and Judge Gilstrap set aside the Gonzalez verdict on 101 grounds, as well as setting aside the damages verdict in one of the two Core Wireless trials. For statistical purposes I count JMOL outcomes on liability as wins for the defendant, which is why I am trying not to refer to "verdicts" this year, in most cases, but outcomes.
Beaumont & Sherman
Judge Mazzant tried two patent trials in Sherman this spring, and Judge Clark had one, a medical device case, in Beaumont last month. All three juries returned verdicts for the plaintiff, for $1.2 million, $6 million (later enhanced to $20 million) and $17.4 million (the medical device case).
Plaintiffs almost broke even in Tyler with three outcomes for plaintiffs and four for defendants, with VirnetX chalking up one for each side during the year. The outcomes represent the range of patent verdicts, with VirnetX over $300 million, the second $22 million, and the third $324,000.
Plaintiffs didn't break even in Marshall either, with four plaintiff wins compared to five defense wins.
The parties and the awards in those cases also illustrate an increasing trend in Marshall filings that I have posted on previously - the district in general and Marshall in particular is seeing more competitor cases and substantially fewer NPE cases, with only a few of the latter going to trial. Of the four plaintiff wins, two were by Core Wireless, which obtained jury verdicts of $3.5 million and $2.3 million, but Judge Gilstrap set aside the first for insufficient evidence. The other two verdicts - Genband's $8.1 million and Arthrex' $17.4 million were both in hotly contested cases between competitors. In fact four of the nine trials were between competitors, and of the three NPEs that did go to trial in Marshall, two out of three lost, with one losing its patent as well.
Which underscores that asserting patents comes at some risk for competitors - interestingly all four of the trials in which juries invalidated patents were in competitor cases, while none of the patents asserted by nonpracticing entities were found by juries to be invalid (although as noted above, Judge Gilstrap did invalidate one postverdict).
So the net outcome for NPEs in Marshall in 2016 was two losses, one win for $2.3 million and a second win for the same plaintiff on liability, but with the prior finding of $3.5 million to be retried.