Snipe Hunting in the NDTX » David C. Godbey

Northern District Judges Speak About Patent Pilot Program

Kirby Drake — Tue, 26 Jul 2011 05:00:46 +0000

On July 26, 2011, Judges Lynn, Godbey and Kinkeade participated in a panel discussion sponsored by the Dallas Bar Association Intellectual Property Section to discuss implementation of the Patent Pilot Program in the Northern District of Texas.

Judge Lynn began the discussion by reporting that Chief Judge Fitzwater just issued Special Order No. 3-287 concerning the Patent Pilot Program. This Order provides that patent cases filed in or transferred to the Northern District of Texas on or after September 1, 2011 shall be assigned according to the civil case assignment procedure in effect in the division where filed. Within 7 days after a patent case is assigned to a district judge, the judge may decline to accept the case and direct that the case be randomly reassigned to a designated patent judge (Judge Lynn, Godbey or Kinkeade). The Order also notes that, except for the designated patent judges, all district judges in the Dallas Division will decline to accept patent cases for at least 1 year after the start of the Patent Pilot Program.

The judges then addressed several issues and questions that have been raised concerning the Patent Pilot Program.

Uniformity and Predictability. The judges strive to have more uniformity among the designated patent judges in order to make patent cases more predictable as well as to encourage more patent cases to be filed in the Northern District. The judges welcome suggestions about how this might be achieved.

Efficiency and Trial Timing. The judges noted that while the criminal docket still must take precedence, the designated patent judges plan to coordinate with one another to shuffle trials as needed to keep the patent cases moving and keep trial settings firm. The judges look for input from the attorneys about the time needed to get to trial and how much time will be needed at trial. The judges may be open to early claim construction, mediation, and/or motions for summary judgment as an effort to streamline a case.

Program Success. The FJC will evaluate the Program by comparing the success rate (% reversal on appeal) for designated patent judges and courts to non-Program judges and courts handling patent cases.

ND Texas Non-Dallas Divisions. The number of patent cases filed outside of the Dallas and Fort Worth Divisions is small. The judges in the Divisions outside of Dallas can refer any patent cases to a designated patent judge if they choose. Judges Means and McBryde of the Fort Worth Division have indicated that they will retain patent cases assigned to them. Judge O’Connor has been managing the Wichita Falls Division and does not presently intend to retain any patent cases filed in that Division.

Funding. The judges hope to receive funding to hire an attorney to focus on Markman rulings; however, presently there is no Program funding to do so. Judge Kinkeade has proposed setting up a fund for citizens to anonymously contribute toward funding a patent-focused attorney for the Program.

Case Management Conferences. The judges believe that Case Management Conferences (CMCs) are the exception rather than the rule and are not normally needed in patent cases.

Special Masters and Technical Advisors. Special masters are not used that often, and technical advisors will continue to be used on a case-by-case basis.

Stays Pending Reexamination. Judge Kinkeade noted that stays are being granted more often on the grant of the first reexamination in the Northern District; however, stays are less likely to be granted on additional reexaminations.

Reliance on Other Courts’ Interpretations of Similar Patent Rules. The judges noted that they may look at how other courts (particularly, the Northern District of California and the Eastern District of Texas) interpret Patent Rules that closely track the Patent Rules of the Northern District but they may not always follow those interpretations.

Meet and Confer Requirements. The judges noted that while the Northern District has not adopted strict meet and confer requirements prior to filing a discovery motion as the Eastern District has, the certificate of conference is important, and litigants must take their meet and confer obligation seriously. Leaving a message with opposing counsel just prior to filing is not sufficient.

Markman Hearings. There remains no standard rule regarding the need for a live Markman hearing.

Transfers to the Northern District. The judges are not aware whether patent cases transferred to the Northern District of Texas from other districts will by default be transferred to the Dallas Division.

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Request for Comments and Upcoming Judges Panel on New Patent Pilot Program

Kirby Drake — Tue, 12 Jul 2011 05:29:44 +0000

The Northern District of Texas has been selected to participate in the Patent Pilot Program. The Patent Pilot Program is a 10-year program to enhance district court judges’ expertise in patent cases. To be eligible to participate, courts had to be among the 15 district courts in which the largest number of patent cases were filed in 2010, or be district courts that adopted or certified their intention to adopt local rules for patent cases. Under the Pilot Program, those district judges who request to hear patent cases are designated by the chief judge to hear them. Patent cases filed in participating district courts are first randomly assigned to all district judges, regardless of whether they have been designated to hear such cases. A judge who is randomly assigned a patent case and is not among the designated judges may decline to accept the case. That case is then randomly assigned to one of the district judges designated to hear patent cases. Senior judges of a district court may participate if at least one judge of the court in regular active service is also designated.

Judges Lynn, Godbey and Kinkeade will be the 3 judges from the Northern District of Texas participating in the Patent Pilot Program. They have graciously agreed to participate in a panel discussion sponsored by the Dallas Bar Association at the Belo Mansion on July 26, 2011 at noon. This panel discussion is open to the public. During the panel discussion, the judges are expected to address some of the questions and concerns that have been raised about the Program.

Patent practitioners have been asked to provide comments and ask questions about this new Program and its implementation in the Northern District of Texas. If you have questions or concerns about the Program, those questions/concerns may be sent to the following email address: PatentPilotProgram@dbaip.com.

Make plans to attend the panel discussion on July 26 if you are interested in learning more about this Program. Also, if you have questions or concerns, please email them to the email address above for consideration by the judges. Questions/concerns should be sent prior to July 26 to allow for consideration by the participating judges before the panel discussion.

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N.D. Texas Chosen for Patent Pilot Program

Kelly Kubasta — Fri, 10 Jun 2011 00:59:28 +0000

The Northern District of Texas was recently selected as one of fourteen district courts to participate in the Patent Pilot Program scheduled to span the next ten years.

As a participant in the Patent Pilot Program, patent cases filed in the N.D. Tex. will first be randomly assigned to all district judges, regardless whether such judges have been designated to hear patent cases. If a judge who is randomly assigned a patent case is not among the designated patent judges, then that non-designated judge may decline to accept the patent case. That patent case will then be randomly assigned to one of the N.D. Tex. district judges designated to hear patent cases.

In the Northern District of Texas, the district judges designated to hear patent cases are:

Judge David Godbey (Dallas)
Judge Ed Kinkeade (Dallas)
Judge Barbara Lynn (Dallas)

In addition to the N.D. Tex., other districts selected to participate in the Patent Pilot Program are:

Eastern District of New York
Southern District of New York
Western District of Pennsylvania
District of New Jersey
District of Maryland
Northern District of Illinois
Southern District of Florida
District of Nevada
Eastern District of Texas
Western District of Tennessee
Central District of California
Northern District of California
Southern District of California

To learn more about the Patent Pilot Program and selection of the Northern District of Texas, please see: “District Courts Selected for Patent Pilot Program”

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N.D. Texas Applies for Participation in Patent Pilot Program

Kelly Kubasta — Tue, 29 Mar 2011 05:53:06 +0000

On March 18, 2011, the Northern District of Texas applied to be one of six district courts to participate in the Patent Pilot Program that was recently signed into law. The pilot program will run for 10 years after the participating courts are designated, with periodic reports submitted to the House and Senate Judiciary Committees during that time. The object of the Patent Pilot Program is to improve the expertise and efficiency of district courts’ handling of patent infringement litigation, thereby reducing litigation costs and decreasing the rate of reversal on appeal.

The Northern District of Texas is eligible for participation in the Patent Pilot Program because: (a) for calendar year 2010, the N.D. Tex. was one of the top 15 district courts in terms of number of patent infringement complaints filed; and (b) the N.D. Tex. adopted local patent rules in 2007. The Administrative Office of the U.S. Courts is expected to select the participating districts by June 4, 2011.

If chosen by the Administrative Office to be one of the six district courts participating in the Patent Pilot Program, Chief Judge Fitzwater will designate the following judges to hear patent cases:

Senior Judge Royal Furgeson (Dallas)
Judge David Godbey (Dallas)
Judge Ed Kinkeade (Dallas)
Judge Barbara Lynn (Dallas)
Judge Terry Means (Fort Worth)

Procedurally, a patent infringement case would be randomly assigned to all district judges, regardless whether such judges have been designated to hear such cases. A judge who is randomly assigned a patent case and is not among the designated judges may decline to accept the case. In that circumstance, the case is then randomly assigned to one of the district judges designated to hear patent cases.

If selected to participate in the Patent Pilot Program, this is yet another indication that the Northern District of Texas will continue to solidify its prominence as a favored forum for patent litigation.

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