Court Has An Opportunity To Finally End The East Texas Patent Troll Docket

from the shut-it-down dept

Mon, Nov 2nd 2015 1:57pm — Mike Masnick

It's been nearly ten years since we first wrote about the East Texas district court, based in Marshall, Texas, (and Tyler, Texas) and the fact that patent trolls have been flooding that court with cases. The trolls claimed they liked East Texas because the judges worked quickly and because they "understood" patent issues. The reality, of course, is that East Texas became notorious for a few judges who were insanely pro-patent troll, and ran their cases in a manner that helped out trolls immensely. It's become a cottage industry, leading to some weird situations, such as the time that Tivo (involved in a patent lawsuit at the time) literally bought a bull right in Marshall, Texas. Perhaps no company has "invested" more in winning over folks in Marshall than Samsung, which not only sponsored the local ice rink, but also gives scholarships to high schoolers there, donates to local schools and takes kids on semiconductor factory tours -- all out of the kindness of its corporate heart, no doubt.

The top judge for patent cases in East Texas used to be John Ward, until he "retired" to join his son in a local law practice representing patent trolls. Then the crown went to Judge Rodney Gilstrap, who is handling a ridiculous number of patent cases. In 2014, he was given 968 patent cases -- or 20% of all patent cases filed in the country. Given that, perhaps it's not surprising that he sometimes appears to completely forget about some cases he's handling. This is the same Judge Gilstrap who has never (not once) granted attorneys' fees to a defendant, despite all of the cases he's heard.

If you haven't figured it out by now, something is totally screwed up with the patent system. It's pretty clear that what we've been witnessing for over a decade is what's known as "forum shopping" in which plaintiffs seek out specific courts known to favor them, but with patent trolls and East Texas it's been taken to a new level. And, notably, a few other courts have been trying to get into the business as well, with Delaware leading the charge over the past few years. Normally, forum shopping is frowned upon, but it's been allowed in patent cases for way too long... and there's actually a chance to stop it. In 1990, a ruling by the Court of Appeals for the Federal Circuit (CAFC, the "patent appeals court") in VE Holding v. Johnson Gas basically opened the floodgates for forum shopping in patent cases.

But there's a new case that has the potential to put an end to this forum shopping. In Re: TC Heartland is another patent forum shopping case, in which an Indiana-based company is looking to get a patent case tossed out of a Delaware court over jurisdiction. EFF, together with Public Knowledge and Engine, have asked the court if it can weigh in with an amicus brief, flat out asking the court to overturn the VE Holding case, and to end forum shopping in patent cases.

Congress did not intend for patent owners to be able to sue in any district in the country, no matter how tenuous the links the purported infringer has to the district. Amici ask that this Court restore balance in patent litigation. Amici support Petitioner in asking this Court to grant the petition for mandamus and recognize that VE Holding is no longer good law.

One hopes that CAFC will listen -- or, barring that, that the Supreme Court might weigh in and fix this aspect of patent law, as it's fixed a number of other problems with patent law over the past few years.

16 105 Heartland Eff Amicus (PDF)16 105 Heartland Eff Amicus (Text)

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Filed Under: cafc, east texas, forum shopping, jurisdiction, patent trolls, patents, rodney gilstrap
Companies: tc heartland

31 Comments

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bgmcb (profile), 2 Nov 2015 @ 2:17pm

How did the jurors make out?
I've not heard anyone followup on jurors after big awards.
Any abundance of "lottery" winners to account for the trolls East Texas success?
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Anonymous Coward, 2 Nov 2015 @ 2:36pm

Re: How did the jurors make out?
How many of these cases actually get to a jury trial?

AFAIK most of these cases get 'settled' without a jury.

And in these cases jury nullification would be justified, which is likely why they don't want a jury to begin with.
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Scote, 2 Nov 2015 @ 2:45pm

Re: Re: How did the jurors make out?
Jury nullification in East Texas? Probably not, considering that plantifg-friendly patent litigation is a significant plus to the local economy.
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murgatroyd (profile), 2 Nov 2015 @ 3:00pm

wishing and hoping
While we're wishing, I'd also like a pony.
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Blackfiredragon13 (profile), 2 Nov 2015 @ 3:06pm

Here's a toast to horrible nature that is humanity!
And why I look forward to the heat death of the universe! 95% of you seem dedicated to leeching off others' success with filing these patent infringement cases.
Between that and the horror that is my family, I've learned that you can never trust another human being, for the second you do, they betray that trust and stab you in back and leave you to flounder and die. Assuming they're not about on the same intellectual level as your average potted plant.
Granted I've got a uniquely horrible family to grow up around which significantly colors my view of the world. My father is the type that refuses to ever admit he's wrong. Kind that sees an everyday mistake(ex:2x3=5) and rather than admit he's wrong says he's right and is willing to go to court and argue it out there. The amount times I've tried to explain to him that gravity does exist and isn't a fallacy invented by the CIA to benefit their overlords in the matrix(yes he believes that the matrix is a real thing and not just part of a movie). Still to this day he demands to see Obama's birth certificate, even though my mother has pointed out that if the man ever does he'll just claim its a forgery.
Granted I'm just reflecting on the tragedy that is the 20 years and 9 days that I've lived. Feel free to report this if I'm just going mad.
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OldMugwump (profile), 2 Nov 2015 @ 4:18pm

Re: Here's a toast to horrible nature that is humanity!
You may or may not be going mad. Either way, I suggest a stiff drink.

And try to pick another family.

Really, 95% of humanity is not as bad as you describe. It's not more than 60% that's that bad.

A good 10 or 15% of humanity is actually nice people.

You're young - take the time to meet more of the nice ones.
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Anonymous Coward, 2 Nov 2015 @ 4:58pm

There are social constructs that should not be for profit:
1) legal system - including law enforcement, judicial, prison
2) public education system
3) healthcare
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OldMugwump (profile), 2 Nov 2015 @ 6:07pm

Re:
Why those three in particular?
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Anonymous Coward, 2 Nov 2015 @ 7:11pm

Where your CEO lives
Companies may have shell offices in East Texas, but the patent lawsuits should have to be filed in the district where the company headquarters is located.
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Anonymous Coward, 2 Nov 2015 @ 7:12pm

Re: Where your CEO lives
Do you mean where it's incorporated? Which is probably Delaware? Or do you mean where the CEO most likely lives?
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Anonymous Coward, 2 Nov 2015 @ 8:34pm

Re: Re:
Because, in these cases the profit motive corrupts ... oh wait - you mean why only these three?
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Anonymous Coward, 2 Nov 2015 @ 9:02pm

Re:
You should add the issuing of money to the list.
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That One Guy (profile), 2 Nov 2015 @ 9:14pm

Re: Re:
Not sure about the AC's reasons, but here's mine for why I agree with them.

1) When there's a financial incentive to have as many people in jail as possible, then there's going to be pushes towards making more and more things illegal, and the punishments harsher, regardless of the actual harm caused by the actions done.

Just as bad, when 'how much money do you have to spend?' becomes more important than 'Are you guilty?', it's not about justice, it's about whether or not you have the money to avoid being steamrolled by the system.

2) Education means opportunities. The better your education, the larger range of jobs you have available to you. 'How much do you currently have?' should not be the deciding factor in determining the education you can get, as that generally means that those without stay without, and those with continue to have more opportunities. Start people on as level a playing field as you can, and then let them take it from there.

3) When someone has to chose between having money, or being healthy... when whether or not someone survives something is less depending on whether or not they can be saved with the medical technology available, and more on can they afford to be saved... when you've got people suffering if not dying from injuries and illnesses that are absolutely treatable, but aren't because they can't afford the bills...

When profit is given higher priority than health and life... yeah, things are all sorts of screwed up.
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David, 3 Nov 2015 @ 3:19am

Re: Re: Re:
When profit is given higher priority than health and life... yeah, things are all sorts of screwed up.

The availability of medical technology contributes little to the screwup. Many more people die from the unavailability of bread than from the unavailability of MRI scanners. The unavailability of bread is highly related to the availability of guns produced in countries with high medical standards, guns making sure that the control over natural resources in poor countries stays with those controlling the flow of money. Naturally, those are interested in swords and plowshares in that order, but with plowshares standing for the kind of industrial agriculture that renders the soil unsuitable for anything but industrial agriculture (and sometimes not even that any more).

People confuse the stock market with some sort of mixed skill and chance game where people put money in and get money out, with a net payout of zero. But the payout is larger than that, since it doles out power, death, destruction and gobbles up blood and lives.

It's a war laundering business, and everybody has a share.
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Copyright Troll, 3 Nov 2015 @ 3:57am

Re: wishing and hoping
No pony but you do owe us $2.5mil for infringing the copyright of our pre-1972 recording "wishin' and hopin'"

Expect a prelawsuit settlement demand letter to arrive shortly.

https://youtu.be/ycbgHM1mI0kk
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AJ, 3 Nov 2015 @ 4:31am

Re: Re: Re: Re:
"The unavailability of bread is highly related to the availability of guns produced in countries with high medical standards, guns making sure that the control over natural resources in poor countries stays with those controlling the flow of money."

People have been killing in the name of power for thousands of years. Long before guns came into the picture. It's easy to blame the tool, how about we blame the people using the tool instead? If not guns, we would come up with another way to mass kill each other, we would figure out something. Human nature is the real enemy here. The quest for power.
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blue skies (profile), 3 Nov 2015 @ 4:35am

its corporate heart

My brain threw a blue screen of death upon reading that corporation actually have hearts.

Oh well, maybe the problem is more that some are made of stone.
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David, 3 Nov 2015 @ 8:00am

Re: Re:
Because people are the country's most important resource and it does not make sense to waste them based on how reckless their ancestors were hunting for green pieces of paper.

In particular since green pieces of paper do not feel pain or joy or enlightenment and thus making them the main target of attention is putting the cart before the horse.

Providing everybody with education, justice, and healthcare makes sure that human potential does not get wasted for stupid reasons causing much more damage than they are worth.
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mrcolj (profile), 3 Nov 2015 @ 12:31pm

Enough with the fanboy authors who haven't studied the issues!
Can we be any more convinced that people are just pawns of the PR firms of the giant software companies? I'm sorry, but East Texas became the seat of software patent cases for one reason--the Judge that was conveniently skipped over in this article, the chief judge for a long period, was the only federal judge in the nation who, before he became a Judge, was a programmer. In other words he was the only judge who could read source code. He's retired now, but that was the case for years. All the corporations AND inventors sought out his court because he was the only one who could understand at that level. And yes, because he was techie he chopped a lot of the inefficiencies and time wasters that besides wasting years made the system biased toward the richest corporations, who could always just wait out the poor mad scientist inventor. One of their other main tricks, as it is to this day, is to convince judges to make "summary judgments," to throw things out where there was still a dispute of fact. He mostly disallowed that, said that he'd throw things out on legal grounds, but if it was a question of guilt, he'd put it before a jury, the way the American system was intended. (Remember your right to a trial by jury in the Constitution? Well that's going away, and the ones paying the bills on making that go away are the big businesses, and THAT is what concerns these judges.)

All I'm saying is go ask any of these judges, go ask any judge in the nation, what's going on and they'll say the exact opposite of the "patent troll" dialogue the paid-for media has been paid to promote.
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OldMugwump (profile), 3 Nov 2015 @ 2:14pm

Re: Re: Re:
What about food, shelter, and clothing?

Don't people need those too?

Should we ban the profit motive from the provision of those too?
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OldMugwump (profile), 3 Nov 2015 @ 2:15pm

Re: Re: Re:
Yes, why only those three?

Why does the profit motive corrupt only those if it doesn't corrupt the provision of other things?

What's special about those?
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OldMugwump (profile), 3 Nov 2015 @ 2:18pm

Re: Re: Re:
I mostly agree about justice.

Re education, your argument makes sense regarding *payment* for education, but I don't see how it applies to *provision* of education.

Re healthcare, how does that argument not apply to all the other necessities of life? Food? Clothing? Housing? Smartphones?
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OldMugwump (profile), 3 Nov 2015 @ 2:20pm

Re: Re:
Why?

Governments around the world don't seem to have done a very good job of providing money that has stable value.

Perhaps a for-profit provider would do better.

Or, if not, why not?
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Anonymous Coward, 3 Nov 2015 @ 5:04pm

Re: Re: Re: Re:
You have a good point, there must be more. I simply limited it to those three as I think they are important. What might be more important than those?
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Anonymous Coward, 3 Nov 2015 @ 5:07pm

Re: Re: Re: Re:
Ban the profit motive ... this pov is silly.
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Anonymous Coward, 3 Nov 2015 @ 5:09pm

Re: Enough with the fanboy authors who haven't studied the issues!
Are you claiming an absence of bad rulings, corruption ?
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Anonymous Coward, 3 Nov 2015 @ 9:42pm

Re: Re: Re:
Because private banks create artificial wealth from issuing debt and calling it growth.
Debt entails interest and interest is profit for banks.
The more debt, the more interest, the more profit. Banks have a vested interest in debt creation. Society does not.
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OldMugwump (profile), 4 Nov 2015 @ 9:31am

Re: Re: Re: Re: Re:
The classical necessities of life are food, clothing, and shelter.

Should those be produced for profit?

If not, why only the 3 things you mentioned, and not those?
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mrcolj (profile), 5 Nov 2015 @ 1:03pm

Re: Re: Enough with the fanboy authors who haven't studied the issues!
Absolutely. Find me a bad ruling or evidence of corruption, especially enough to hint a trend, and I'll quickly acquiesce. But if you read up on the topic you'll find there are not even any accusations of such outside sites like techdirt, which cater to a certain demographic that loves conspiracies and uber-corps. (Hey, I'm on here because I'm your same age and demographic and probably work in the same fields.) But as I said earlier, it's worth noting aloud that few to no attorneys or judges believe this dialogue. And who else are you going to believe? Who even speaks on this topic besides Defendants' PR firms?
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mrcolj (profile), 5 Nov 2015 @ 1:07pm

Re: Re: Re: Enough with the fanboy authors who haven't studied the issues!
How do you even argue for a bad ruling when there's a jury? How many people have to be involved in a conspiracy like that if uber-corp has 60 lawyers in a case and five years to produce a power-point presentation, normaly against a 6 lawyer team representing one scientist, and after all that and millions spent by the uber-corps the jury rules in favor of the scientist? The system is set up precisely so it's very difficult to call "bad ruling" or "corruption" on it--it's a jury of your peers and no one is handicapped in their presentation, so where would we even point to accuse some confederacy?
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Anon, 5 Nov 2015 @ 1:22pm

Re: Re: Where your CEO lives
I believe the logic is that jurisdiction is defined by where the crime is committed. Remember the whole model of "you may have only stolen a candy bar but once you cross state lines the FBI takes over the investigation"? Well that's what's going on here. A plaintiff does need to show that the patent was infringed in east texas, but in this world that's so globalized that nationalization isn't even a word anymore it's impossible to have a product that hasn't been held forth for sale in texas or sold to a texan or somehow victimized the east texas population. (Which consists of North Dallas up to Louisiana and Arkansas, so an area of millions of people, despite these articles that imply this is about small towns of rednecks.) And if for some reason they can't show infringement in a place where there's a judge that reads source code, they can still file it anywhere else you're marketing your infringing product.
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