Congressional inaction in the face of federal judicial appointments has been a pretty big story during the current political cycle. Most of the mainstream media’s attention has focused on U.S. Supreme Court appointee Merrick Garland, nominated this March to take the seat vacated by the death of Antonin Scalia. Senate Republicans, including majority leader Mitch McConnell (R-KY), have indicated that they will not vote on Garland’s nomination until a new President is in place in the White House.
This isn’t the only judicial vacancy which Capitol Hill has been unable to fill in recent days, however. As of Tuesday, August 30th, statistics published online by U.S. Courts indicated that there are 93 total federal judicial vacancies affecting the U.S. system of courts. This includes 32 vacancies which are considered to be judicial emergencies. A judicial vacancy at a district court is considered an emergency when weighted filings are in excess of 600 per judgeship, or the vacancy exists for more than 18 months where weighted filings range from 430 to 600 per judgeship, or the vacancy is at any court with more than one authorized judgeship but only one active judge. U.S. district courts have a total of 72 vacancies, 28 of which are judicial emergencies.
Three of the judicial emergencies, just less than 10 percent of all judicial emergencies in the U.S. federal court system, are in the U.S. District Court for the Eastern District of Texas (E.D. Tex.). These vacancies were created by the retirement of Judge Leonard Davis last May as well as the senior status achieved by Judges Richard Schell last March and Michael Schneider this January. These three vacancies have been pending for a total of 1,245 days, almost three and a half years.
These vacancies are troubling from an intellectual property standpoint because E.D. Tex. is a preferred venue for parties looking to bring patent infringement suits against defendants. An IP litigation report released by legal analytics firm Lex Machina providing litigation statistics for the first quarter of 2016 found that 30.5 percent of all U.S. patent infringement cases were filed in E.D. Tex. In 2015, that figure was even higher with E.D. Tex. taking 43 percent of all infringement cases filed in U.S. district courts.
With the judicial vacancies in E.D. Tex., the concern is that a growing docket of patent infringement cases could create a bottleneck for the court, greatly increasing the amount of time that it takes the court to issue a decision. Business litigation is typically given a backseat to criminal litigation in district courts as American law upholds a suspected criminal’s right to a speedy trial. The vacancies also naturally result in an increased percentage of U.S. patent infringement cases assigned to Judge Rodney Gilstrap. This January, we reported that Judge Gilstrap could be deciding as much as 20 percent of all patent infringement cases filed in U.S. district courts. The fact that one judge could be deciding as much as one-fifth of the patent infringement docket at the district court level seems a little less than democratic.
It’s not as if the executive branch of the federal government hasn’t nominated anyone to fill these seats, although not every vacancy would be filled even if each nominee were approved by Congress. There are a total of 57 nominees pending for federal judicial vacancies, including 42 for district courts. There’s one pending nomination that would fill a seat in E.D. Tex. This March, President Barack Obama nominated a series of judges to fill federal benches, including Karen Gren Scholer. A principal with a business litigation focus at Carter Scholer Arnett Hamada Mockler, Scholer was appointed to fill the E.D. Tex. seat vacated last March by Judge Schell. According to information available through JudicialNominations.org, a Congressional hearing on Scholer’s nomination has yet to be scheduled.
The fact that there has been no Congressional action on many of these federal judicial appointees is interesting given the fact that there is a bill introduced in the U.S. Senate which targets venue options at the district court level specifically for patent infringement actions. This March, Sen. Jeff Flake (R-AZ) introduced S.2733, also known as the Venue Equity and Non-Uniformity Elimination Act of 2016. If enacted, the bill would amend federal judicial code to limit patent infringement actions to be filed only in the district where: the defendant has its principal place of business or is incorporated; the defendant operates a regular and established physical facility giving rise to patent infringement; the defendant consents to be sued; an inventor named on the patent conducted research and development leading towards the application of the patent-in-suit; or a party has a regular and established facility and has provided R&D for the claimed invention, has manufactured a tangible product alleged to embody that invention, or has implemented a manufacturing process for a tangible good in which the process is alleged to embody the invention.
The language of Sen. Flake’s bill would replace current laws on patent action venue allowing patent actions to be brought where the defendant resides or where the defendant has committed acts of infringement and has a regular established place of business. Because many products and methods which are targeted by infringement allegations are sold in many regions across the U.S., plaintiffs often have an array of venue options for bringing patent actions under current U.S. law. This May, it was reported that Sen. Chuck Grassley (R-IA), chairman of the Senate Judiciary Committee, wouldn’t consider the venue requirements bill in committee but would rather focus on comprehensive legislation targeting so-called patent trolls.
E.D. Tex. isn’t the only district suffering from multiple judicial emergencies. In the state of Texas alone, there are two emergency vacancies in the U.S. District Court for the Southern District of Texas (S.D. Tex.) and four in the U.S. District Court for the Northern District of Texas (N.D. Tex.). There are also five judicial emergencies across the circuit of appellate courts in the U.S. court system, although emergencies are defined slightly different in those courts. One impact that these vacancies could have is to increase patent challenges filed at the Patent Appeal and Trial Board or at the U.S. International Trade Commission as district courts continue to become bogged down with more infringement actions than active judges can handle.