Should patent owners be afraid of NDTX now that the patent pilot is over? And what can we learn from a preliminary injunction denial? Hint—a lot.

 

SPEAKERS

Wayne Stacy, Michael Smith

 

Wayne Stacy  00:00

Welcome, everyone to the Berkeley Center for Law and Technology's Last Week in Texas podcast. I'm your host, Wayne Stacey. And we're here once again with Michael Smith. Michael, thanks for joining us.

 

Michael Smith  00:12

Thanks for having me.

 

Wayne Stacy  00:14

Well, Michael, another another week and another set of interesting cases coming out of out of Texas.

 

Michael Smith  00:23

There sure were.

 

Wayne Stacy  00:25

Well, and some of these are beyond the normal, interesting cases. It shows a lot of a lot of behind the scenes maneuvering in courthouses. But before we get to the the fun things, let's talk about patents scheduling and Marshall.

 

Michael Smith  00:40

Yeah, this is helpful to kind of put a stake in the ground because it'll it's relevant to some things we'll be talking about later. Last week, we had our usual bimonthly patent scheduling conferences in Marshall affectionately referred to as the cattle call. And we all show up, go over there judge Gill strap goes through the cases, sees who consents to a magistrate judge and who doesn't and then gives the cases are Markman and jury trial settings. And the significant thing about this is Judge Gilstrap for the last 10 years, he always sets cases for trial at about the same time, 14 months from the scheduling conference, give or take 30 days, same thing here 13 To 15 months, the markets are a little bit later there, they were running seven to nine months from the scheduling conference, they're usually six to eight. But that just means that it affects the timing aftermarket ones just a few weeks. But anyway, it's always good to see people Judge Gilstrap will announce if there are any changes in procedures, and there weren't at this case. So we had about 14 cases heard one significant change over the years is of those 14 cases, only two had other cases consolidated into them. We used to have an average of six to 10 cases, consolidated with one lead cases, we're now down to like, I think 1.1 cases, because we only had to one had another case consolidated with it, another had three cases consolidated with it. So we don't see as many cases where a plaintiff sues multiple defendants. Some of that is certainly attributable to TC heartland, a plaintiff will file some cases in the Eastern District. They can't get Vinu on other defendants. So they'll file those in the western district or in Delaware, California somewhere.

 

Wayne Stacy  02:32

We also saw some some state motions that came out of martial that seemed to be

 

Michael Smith  02:38

if you want to dig a little deeper, seemed to have some some wonderful meaning behind them. Well, they did. There was a lot of interest in the state cases that we talked about in Waco last week. And it just so happened that when I was looking at cases out of Marshall, at the same time, I had four cases I could look at where Judge Gilstrap ruled on a motion to stay. And again, like snowflakes, every state was was different. In the vocal life case, the request was will judge give us a state because we're doing venue discovery. And there's another case up in front of the Federal Circuit involving the plaintiff a prior case. And the judge said, Well, under the facts of this case, venue, discovery is about to end. So I'm going to deny the mot