Is the Marshall, Texas, Patent Docket Doomed?

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December 30, 2008 11:26 AM

Is the Marshall, Texas, Patent Docket Doomed?

Posted by Nate Raymond

The Am Law Daily has a soft spot for Marshall, Texas. We visited the town last December, in time to see both its "Holiday Trail of Lights" and Denzel Washington show up for the premier of "The Great Debaters."

Alas, all is not well in Marshall, home of much of America's patent litigation. When we last visited Marshall, we discovered defendants were finally figuring out how to win a case in the notoriously plaintiff-friendly Eastern District of Texas. We wrote about that in this March cover story. Of course, some defendants continued to lose -- Boston Scientific, for instance, twice -- and so patent defense lawyers began looking for an escape.

As sibling publication The Recorder reports today, defense lawyers finally may have found a way to kill Marshall's patent docket. In October, the Court of Appeals for the Fifth Circuit ruled that a products liability case against Volkswagen AG could be transferred out of the district. Lawyers at the time were split on whether the case would apply to patent cases as well, since their appeals in those cases go to the Federal Circuit.

But on Monday, the Federal Circuit applied the rules set down by the Fifth Circuit. Judge Randall Rader, writing for the court, said Eastern District Judge T. John Ward "clearly abused" his discretion in denying a motion by TS Tech Co. to transfer a patent case brought by Lear Corp. to Ohio, which TS Tech claimed would be more convenient, The Recorder reports.

The case suggests that other defendants may be able to transfer out of East Texas, some lawyers say. "I wish I could have nickel for every time that someone pronounced the demise of the Eastern District," Morrison & Foerster partner Harold McElhinny told The Recorder. "But this one looks a little more serious than the others."

Not surprisingly, Marshall's defenders find the opinion curious. Michael Smith, a Marshall-based lawyer with Siebman, Reynolds, Burg, Phillips & Smith, highlights one oddity on his closely-read blog about the Eastern District: The Federal Circuit's decision repeatedly takes Judge Ward to task for not following the Fifth Circuit's opinion, yet the Volkswagen decision "wasn't issued until six weeks after Judge Ward denied the motion."

That said, Smith--who was kind enough last December to show us Marshall's wine shops and restaurants--acknowledges the case could have big effects for his hometown court. "This case will be an interesting one to watch to see what effect it has on motions to transfer at the district court level, petitions for mandamus to the Federal Circuit, and rulings on those motions," he writes.

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