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Let’s Put this Myth to Bed: The Eastern District of Texas is Not Plaintiff-Friendly

“When the analysis is confined to the statistics, the math makes it impossible to characterize the Eastern District of Texas, and Judge Gilstrap, as patent owner friendly.”

Over the last several days, the Wall Street Journal has reported on numerous federal district court judges that it says have violated the Code of Judicial Conduct by not recusing themselves in cases where they, or their spouse, held a pecuniary interest. The Journal reporting finds that, in most cases, the judges seem to have mistakenly believed that if they or their spouses owned stock in a company and their portfolio was blindly or privately managed by a money manager without input or knowledge, they did not need to recuse themselves. That, however, is not the standard according to the Office of Administrative Courts.

The judge identified as the one who most frequently failed to recuse himself was Rodney Gilstrap, Chief Judge of the United States Federal District Court for the Eastern District of Texas. Judge Gilstrap is well known throughout the country as the jurist with who, over the last decade, has had the largest docket of patent infringement cases, including virtually every patent case filed in the Eastern District of Texas.

A Deafening Drum Beat

For the last 15 years, there has been a growing, often deafening, PR narrative promulgated by large, multinational technology implementers that has vilified patent owners as nothing more than a bunch of patent trolls. Although the truth is extremely complicated and the details are nuanced, the pounding of this drum grew and grew to the point where even the U.S. Supreme Court became preoccupied with patent trolls, despite never having a case dealing with any party even alleged to be a troll, or a bad actor. And the scene of the crime, as the story goes, was always the Eastern District of Texas, and almost universally Judge Gilstrap’s courtroom.

With news that Judge Gilstrap should have recused himself in some 138 cases over the last decade, one could easily have imagined that the patent troll narrative would receive new lifeblood. Perhaps to the surprise of many, that is not what the Journal investigation revealed. Quite to the contrary. Judge Gilstrap and his wife owned such blue-chip patent infringement defendants as Microsoft, JP Morgan Chase and Cisco Systems, and those defendants seem to have fared rather well in rulings in his court.

Because the patent troll narrative has so effectively consumed all the oxygen in every patent debate over most of the last generation, casual observers would be forgiven for believing that the Eastern District of Texas, and in particular Judge Gilstrap, favored patent owners at the expense of those victimized, large, multinational technology implementers that infringed patents rather than took licenses. As is often the case with a one-beat PR narrative, the volume of the drumbeat was intended to obscure the truth, and it did so with extraordinary efficiency.

The Journal explained the real story:

In the period before patent cases got to trial, Judge Gilstrap’s court has proved somewhat plaintiff-friendly, according to data analyzed for the Journal by Lex Machina, a legal analytics provider. Of 6,929 patent cases in front of Judge Gilstrap, 83% were resolved with a settlement before trial, compared with 69% of patent cases nationally since 2011.

Once litigants got to trial, however, the data analysis shows Judge Gilstrap’s rulings have favored defendants more often than in patent suits nationwide. Since 2011, he has found that defendants infringed patents in 34 cases and didn’t infringe in 35. Nationwide, judges have found infringement in 277 cases and none in 204 cases, according to Lex Machina, which also counted more patent suits handled by Judge Gilstrap than any other judge in the past decade.

Numbers Don’t Lie

Doing the math, according to the Wall Street Journal, of those patent infringement lawsuits that go to trial in Judge Gilstrap’s courtroom only 49.3% of defendants are found to infringe. In cases involving all other trial judges in the United States, 57.6% of defendants are found to infringe. When the analysis is confined to the statistics, the math makes it impossible to characterize the Eastern District of Texas, and Judge Gilstrap, as patent owner friendly. Add to this that Judge Gilstrap has decided cases where he and his wife owned stock in the alleged infringing company, and it is pure fantasy to believe his courtroom favored patent owners.

What the Journal reporting clearly demonstrates is that it is long past time to once and for all put to rest the myth that the Eastern District of Texas is patent-owner friendly.

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Join the Discussion

10 comments so far.

  • [Avatar for Bemused]
    October 3, 2021 05:16 pm

    Gene, thanks for calling out the continuing smear campaign against Judge Gilstrap and the EDTX by Big Tech’s allies in the media. It will be just a matter of time until they set their sights on Judge Albright and the WDTX.

  • [Avatar for tiredlitigator]
    October 3, 2021 09:19 pm

    Respectfully, I think your analysis is too limited. Without saying I agree one way or the other as to whether any judge is really plaintiff friendly, there are any number of factors that are relevant aside from just pure trial win/loss rates. How much factual support does the judge require to survive a 12(b)(6)? Or a Section 101 motion? Does the judge stay cases pending IPR? Being “plaintiff friendly” on those issues would allow a plaintiff to more easily keep a case going longer, increasing the odds the defendant will settle rather than go through discovery, Markman, summary judgment, trial, etc. And as for trial, how much influence does a judge have when the trial is by a jury? Given the lack of ANDA cases in E.D. Tex., I would guess most of the cited cases were jury trials. Numbers certainly don’t lie, but they don’t necessarily paint an accurate picture of the situation.

  • [Avatar for PTO-indentured]
    October 4, 2021 08:50 am

    And thus, misinformation has won — proving, a biggest paid-for anti-patent campaign ever — prevails over, nay subsumes rationality. Those who have fallen under its sway are (as intended) its mere subjects. A spoon-fed ‘anxiety’ based on a fairy tale has won — over deliberate, thorough and thoughtful reflection, discernment and reason.

    Justice can never rest on, be built on, or follow outright lies. And an erosion of trustworthiness will unavoidably be the cost.

    Honor already ‘left the building’ under a sure embrace of efficient infringement — enabled and fostered by AIA.

  • [Avatar for Night Writer]
    Night Writer
    October 4, 2021 08:59 am

    You know, the only real objective non-political agency in DC, was the OMB. And the OMB in like 2009 did a report on “patent trolls”, and their conclusion was that there was no “patent troll” problem and that the narrative was being driven by lobbyists. And this was a preclude to the AIA and Obama. What Obama did was ignore the OMB and said to SV, “show me the money!” They did and we got the AIA despite the only study that could be trusted done by the USA government saying there was no problem other than the lobbyist creating a false narrative.

  • [Avatar for John F]
    John F
    October 4, 2021 09:08 am

    It’s plaintiff-friendly because it’s less likely for a case to be dismissed before trial. Forcing defendants to go to trial is a pro-plaintiff settlement strategy.

  • [Avatar for American Cowboy]
    American Cowboy
    October 4, 2021 10:18 am

    What’s the matter with being “patent friendly?”

    Being antagonistic to patents means, in the words of the constitution, being antagonistic to promoting “the Progress of Science and useful Arts.”

  • [Avatar for Curious]
    October 4, 2021 10:40 am

    How much factual support does the judge require to survive a 12(b)(6)? Or a Section 101 motion?
    Factual support? You describe yourself as a litigator so you do know that a 12b6 motion is on the pleadings? One does not need factual support — just factual allegations — “enough facts to state a claim to relief that is plausible on its face.”

    You do also know that a 12b6 motion is for failure to state a claim? As such, the factual allegations must be made to the claim of patent infringement — meaning factual allegations do not have anything to do with overcoming an affirmative defense. The Federal Circuit has perverted 12b6 jurisprudence in a way that is contrary to how 12b6 motions are handled in every other federal judicial circuit.

  • [Avatar for Mike]
    October 5, 2021 08:47 am

    This is another totally oversimplified analysis that reaches an incorrect conclusion. EDTX is unquestionably plaintiff-friendly, and that’s why so many patent plaintiffs choose it. It has feet-to-the fire scheduling and low early dismissals that keep a lot of plaintiffs with questionable claims in the game, improving settlement chances. The ultimate win rate compared to the national win rate for plaintiffs bears this out – there are more meritless claims brought in EDTX exactly because it is so plaintiff-friendly (and it’s a well-known fact).

  • [Avatar for tiredlitigator]
    October 5, 2021 10:42 am

    @Curious, I am not sure what distinction you are making between “factual support” and “factual allegations”… a pleading certainly requires some amount of facts to be alleged/included/stated/written/stated/scribbled/etc. Your comment also fails to address the substance of my post, that there are factors other than jury trial win/loss rates that can demonstrate plaintiff-friendliness or unfriendliness. As others have commented, for example, a low number of early dismissals (on 12(b)(6) motions) is a plaintiff-friendly stat.

  • [Avatar for Josh Malone]
    Josh Malone
    October 6, 2021 03:12 pm

    Mike, there are 2 sides the coin. “It has feet-to-the fire scheduling and low early dismissals that keep a lot of [defendants with questionable defenses] in the game, improving settlement chances”.


    Do you believe cases that present a genuine dispute of material fact should be tried, delayed, or thrown out?