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IP, Patent

Patent Plaintiffs Should Meet High Expectations In Eastern District Of Texas

Earlier this week, I was sharply criticized for suggesting that patent owner’s attorneys:

tak[e]a calculated business risk in bringing a suit on contingency, and a patent owner typically has to convince the firm that the patent represents a good investment. Every lawyer worth his or her salt will assume that any given case will proceed through trial, and needs to secure financing to cover those costs.

Via Software Patent “Rant” Misses The Point

This is reiterated by a recent order from Judge Leonard Davis, of the Eastern District of Texas, Tyler Division.

This Court has high expectations for the parties and counsel who file patent cases in the Eastern District of Texas, and an attorney who files a patent case has a serious responsibility to ensure that his case has merit and that he is prepared to take the case to trial. See Antonious, 275 F.3d at 1074. Most parties and counsel strive to meet these expectations. Prosecuting and defending patent litigation is undoubtedly expensive for both sides. And that expense must be born by both sides in resolving a dispute on the merits—by settlement or trial. But when it appears to the Court that the cost of the litigation is more of a driving force than the merits of the patent-in-suit, then this Court will not hesitate to put the emphasis back on the merits of the patent-in-suit and consider Rule11 sanctions if necessary.

Via Motion for Sanctions Against Losing Patent Plaintiff – Judge Leonard Davis Opines on When Rule 11 Sanctions Are Proper (emphasis added in Michael Smith’s post)

Certainly, there are instances where cases are filed that wholly lack merit (at least to the point of being sanctionable, as Judge Davis suggests). Nevertheless, I believe those are just that, instances and not the rule.  I also believe that, despite East Texas’ unearned reputation as a plaintiff-friendly docket, fewer frivolous cases are filed in Texas than in other jurisdictions because of sharp judges like Judge Davis.



4 thoughts on “Patent Plaintiffs Should Meet High Expectations In Eastern District Of Texas

  1. As to the quality of patents; based on court rulings of the last several years, roughly half of all litigated patents are upheld in court. That’s pretty balanced and suggests there is no problem with patent quality. Further, seldom do cases ever make it to trial as the parties settle out of court. The facts do not support the contention that there is a patent quality issue. Still, with almost half a million patent applications filed each year a few are bound to be issued that shouldn’t. Many patent system bashers like to cite silly patents such as a cat exercise patent. However, rarely are they ever an issue because you can’t enforce them without money and you wont get the money unless you have a good patent. All inventors can do with such patents is paper their bathroom walls. Keep in mind it costs the patent holder about as much in a patent suit as it does the accused infringer. Often times it costs more because in multiple defendant cases infringers will band together to share costs. Investors are not stupid. If they don’t have confidence in your patent, they will not invest. It’s that simple. Bad patents do not get funded.

    Posted by staff | March 14, 2011, 9:11 am


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