“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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