In Defense of the Eastern District of Texas and its Handling of Patent Litigation

Wooden Judge Gavel And Car Keys Over Sound Box - View From Top

The U.S. District Court for the Eastern District of Texas (EDTX) is often painted in a bad light. Among other malignments, the Court has been described as having “earned a reputation as the intellectual property equivalent of a speed trap.” See Patently Unfair, Texas Monthly (Oct. 2014).

Somewhere between a quarter and a half of all patent cases are filed in the Eastern District of Texas—one of 94 federal district courts—one in which the courthouses are in small towns. How did this happen? Should you be concerned?

A paradox of the judiciary is that while it defends the rights of others—hearing the advocates who come before it—it is ill-equipped to defend itself or to advocate for its needs.

I write in defense of the Court. I admire “the just, speedy, and inexpensive” resolution of disputes. Those words and principles are embodied in Rule 1 of the Federal Rules of Civil Procedure.

Here’s some background that informs my perspective. I’m a Texas and Illinois lawyer based in Chicago. So far this year, I’ve made four trips to Texas, most recently to attend the Eastern District of Texas Bench-Bar Meeting in Plano, held October 19-21, 2016.

East Texas

If you’ve never been to East Texas, it isn’t what you think it is. It is not like the old John Wayne movies, supposedly set in West Texas, but actually filmed in the Southern California desert.

East Texas is defined by the Piney Woods and the Big Thicket, an impenetrably dense forest. It has a lot of rainfall.

I learned about East Texas many years ago, when I moved from the Midwest to Houston with a freshly minted degree in chemical engineering, a hunger for professional opportunity, and a promise of warm winters. I worked in technical sales of industrial water treatment chemicals (and later in refining), and my territory included East Texas, which took me to places like Lufkin, where a big paper mill was my customer.


A funny thing happened as I drove through East Texas. I’d be following a car, and the driver would pull over and drive on the shoulder. I didn’t know what to make of this behavior. Finally, it occurred to me that the driver was making it easy for me to pass, and I did so. This happened several times. When I arrived at the paper mill in Lufkin, I asked if this was normal, and I was assured that it was.

I was in East Texas before East Texas was cool—or should I say hot—as a place to live and work and litigate patents.

Houston and Texas were good to me. I learned about engineering and business and industry. The doors were opened wide to me. I started law school at the University of Houston the month before the U.S. Court of Appeals for the Federal Circuit was created (unknown to me), and three years later I was the first U. of H. grad selected to serve as a Federal Circuit law clerk.

Patents & Marshall

After the formation of the Federal Circuit in 1982, patents became prized assets. Ten years later, in 1992, the Eastern District of Texas, particularly the Marshall Division, became the forum of choice for patent litigation.

Marshall was and is a small town. Its courthouse was not very busy. It had a small criminal docket—criminal trials take priority over all others—and it looked like the kind of place where Texas Instruments could get its patent cases to trial quickly. See Patently Unfair (Texas Monthly Oct. 2014). TI blazed that trail and others followed.

The Eastern District of Texas became known for its rocket docket. Litigants came for speedy resolution of their disputes. They admired the juries and the local practice of allowing lawyers to voir dire the panels of prospective jury members—literally, to see what they would say before they were picked to be on the jury. It’s a civilized, friendly practice. It fosters communication and it facilitates mutual understanding.

The Eastern District now struggles successfully with its large docket. Litigants still come, for the same reasons as before, and for the additional reason that the Court has become sophisticated in dealing with patent cases. Yes, the venue embraces the Big Thicket of the Piney Woods, but it would be foolish to mistake it for a backwoods court.

Venue in patent infringement cases, under the statute and case law, is permissive. That’s what allows patent owners to file suit in the Eastern District of Texas. The law and the practice may change—there are many efforts underway to limit venue—but the Court doesn’t compel plaintiffs to file complaints there. Plaintiffs choose the venue. And the Court deals with the cases.

The Eastern District has greater expertise and more experience than any other court in the nation in deciding motions to transfer.

East Texas is growing rapidly in population. Sherman, Plano and Frisco are hot, literally and economically. Three hundred new people move there every day. The District cuts a vast swath—hundreds of miles—from North to South.

The State of Texas and the Eastern District understand the economic importance of courts—of judgeships—of the just, speedy, and inexpensive resolution of disputes. One of the speakers at the EDTX bar meeting, Ray Perryman, holds a Ph.D. in economics. Unlike some economists, he is capable of reaching simple conclusions. He knows that uncertainty translates into lack of investment. Business people need prompt resolution of their disputes. That’s what judges and courts are supposed to do. They take that responsibility seriously in the Eastern District. If you file a case there, they’ll deal with it. They also want their vacant judgeships filled to help the Court decide more cases faster.

Five hundred people attended the recent EDTX bar meeting. Fifty of them were judges, mainly federal, from across the nation. The chief judges of the Federal Circuit and the Fifth Circuit were there, and they spoke on panels. The Director of the U.S. Patent and Trademark Office was there, and she spoke on panels. Top lawyers from all over the country were there. The program was packed with substance. It was professional and challenging. And the people are nice.

In sum, the U.S. District Court for the Eastern District of Texas is a friendly, sophisticated court dedicated to the just, speedy, and inexpensive resolution of disputes, including patent infringement cases.

Oh, and if you’re ever in East Texas, do as the locals do: On the county roads, they’ll move over to let you pass. They’re the people who will decide your cases. Be nice, and respectful, and you’ll get along fine.

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