The WSJ unnecessarily attacks Judge Gilstrap's integrity. And the Federal Circuit declares rural America as too inconvenient for patent cases. Does the Federal Circuit even care about In re Volkswagen anymore?   

 

SPEAKERS

Wayne Stacy, Michael Smith

 

Wayne Stacy  00:01

Welcome, everyone. This is the Berkeley Center for Law and Technology’s Last Week in Texas podcast. I'm your host, Wayne Stacy, the executive director of BCLT. And once again, we have Michael Smith with us, world famous lawyer and legal blogger, and probably the most knowledgeable person about Texas civil procedure and patent cases. With all of that introduction, Michael, we're gonna turn to media first and ask about what looked like an attack piece from the Wall Street Journal last week, presumably talking about judges and their duty to recuse themselves, but really going after Judge Gilstrap in an unfair way. What did you make of that piece?

 

Michael Smith  00:50

When your take on it was the same as mine. The the journal initially had an article talking about how over 100 judges had not recused in cases where the journal thought that they should have because the judge or the judges spouse or a member their family had a stock in, in in a company that was in the case. It pointed out that in most cases, the judges thought that they didn't need to recuse, either because it was in a trust or it was blindly or privately managed. And in the journal says that's not the case. I don't know if that's true or not. But what we saw come out the next day was I thought a pretty clear attack piece on judge Gillstrap. But what was really funny about it to those of us who handle IP cases out there is that they they, they their data analysis showed that judge Gillstraps rulings have actually favored defendants more often than in patent suits nationwide. When you get down to trial, it showed that defendants won more often than they lost at trial. But nationally, defendants lose out almost 60% of the time, which is not news. We all knew this. But it was funny seeing the Wall Street Journal, explain how defendants do better in his court. But they were still trying to claim that there was something improper about about his cases. So it got a lot of attention locally in Texas. But it's just hasn't been our experience. Nobody. Nobody that I know of. And this includes the reporters that wrote the case that wrote the article. I don't think any of them think he ever did anything improper as a result of the ownership. They were simply looking for an excuse to say something bad about him. And and it's unfortunate that they did that, because this is an important issue. This is an issue where the courts, and possibly Congress should look at making sure that this is handled a little more transparently, but they undermine their analysis by taking shots at a judge where nobody thinks that is influencing his opinions. But But again, I had someone asked me the other day, well, where do you go from here is judge Gilstrap going to recuse is he not going to recuse? What happens if he does? I don't know. I had a scheduling conference with him last week in a case where I now know he holds stock in the company that's on the other side of me. I have no intention of asking him to recuse, because I'm very happy to have him here. In my case. If he chooses to recuse or if he decides that he is required to accuse recuse what happens to those cases? Well, most courts have rules dealing with that and the rule in the Eastern District is the cases then go to the other judge, Judge or judges that are assigned to that division. In this case, that means they go to judge Trey Schrader in Texark