[Infowarrior] - Why Do Patent Trolls Go to Texas? It’s Not for the BBQ

[Richard Forno]

Why Do Patent Trolls Go to Texas? It’s Not for the BBQ

There is a lot in our current patent system that is in need of reform. The Patent Office is too lax in granting patents. Federal Circuit case law has consistently favored patentees. Another part of this problem is the forum shopping by patentees that leads to a disproportionate number of cases being filed  in the Eastern District of Texas.

Back in 2011, This American Life did a one-hour feature called “When Patents Attack!” The story included a tour of ghostly offices in Marshall, Texas, where shell companies have fake headquarters with no real employees. For many people, it was their first introduction to the phenomenon that is the Eastern District of Texas, a largely rural federal court district that has somehow attracted a huge volume of high-tech patent litigation.

The Eastern District of Texas is still number one for patent cases. Last year, there were just over 6,000 patent suits filed in federal courts around the country. One in four of those cases (24.54% to be exact) were filed in the Eastern District of Texas. But why do patent plaintiffs, especially trolls, see it as such a favorable forum? Partly, the district's relatively rapid litigation timetable can put pressure on defendants to settle. But other local practices in the Eastern District also favor patentees. And, in our view, they do so in a way that is inconsistent with the governing Federal Rules, and work to mask the consistent refusal by the courts in the Eastern District to end meritless cases before trial.

The podcasting patent troll litigation provides a recent case study. EFF is currently fighting the patent troll Personal Audio at the Patent Office, where we’re arguing that U.S. Patent 8,112,504 (the “podcasting patent”) is invalid. But Personal Audio is also involved in litigation against podcasters and TV companies in the Eastern District of Texas. We’ve been following that case, and unsurprisingly, the defendants there are also arguing that the podcasting patent is invalid. Specifically, the defendants are arguing that earlier publications and websites describe the system for “disseminating media content” that Personal Audio says it invented.

Recently, something happened in that case that we thought deserved notice: the defendants were denied the opportunity to have the judge rule on summary judgment on this issue. This deserves a bit of  explanation: generally, parties go to trial to have their rights decided by a jury. But the Federal Rules provide the parties the right to get “summary judgment” (i.e., a decision from the judge) where there is no “genuine dispute as to any material fact.” To be clear, this doesn’t mean the parties have to agree on all the facts. What it means is that where the only disputes are not genuine (e.g., there isn’t enough evidence to support an argument) or not material (e.g., the resolution of the dispute would not change the outcome) summary judgment should be granted.

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https://www.eff.org/deeplinks/2014/07/why-do-patent-trolls-go-texas-its-not-bbq

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Just because i'm near the punchbowl doesn't mean I'm also drinking from it.