Ward at center of flight-plan change in Texas 'rocket docket'

Legal News Line Mar. 5, 2009, 11:29am

Judge T. John Ward

Editor's note: This story is the second in a series examining the future of patent infringement litigation in the Marshall Division of the Eastern District of Texas.

After thousands of patent infringement cases have passed through the federal court in Marshall, Texas, it may take only two recent court rulings to undo the district's docket.

Last week, the U.S. Supreme Court refused to review a lower court ruling that transferred a product liability lawsuit against Volkswagen from the Eastern District of Texas - known as a plaintiff-friendly "rocket docket," in legal circles - to Dallas, which is generally viewed as better venue for the defendants.

The decision by the Supreme Court upholds a 10-7 ruling by the 5th U.S. Circuit Court of Appeals that voted to transfer the case from the Eastern District.

In December 2008, The 5th Circuit also issued a writ of mandamus against the East Texas court overturning a decision to deny TS Tech's motion to transfer its patent case from the Texas court to Ohio.

According to legal experts, the twin legal killings of Volkswagen and TS Tech are expected to fundamentally change the East Texas court.

Over the past decade the remote court in Marshall in East Texas became one of the nation's leading courts for intellectual property and patent liability cases. The Marshall Division had a high of 234 patent cases filed in 2007, according to the court's public access terminal, up from just 67 cases in 2004.

Defense attorneys are now emboldened to seek transfers out of that district. Likewise, plaintiff's attorneys will reconsider the venue as its first choice. A report on Bloomberg.com found both to be true in 2009, with double the number of transfer motions filed to date than in 2008, and a 33 percent decline in the number of cases filed over the same time period.

At the center of these significant legal precedents sits federal Judge T. John Ward, a former litigator who, since his arrival on the East Texas bench in 1999, has become one of the foremost judicial experts in patent cases.

The East District's reputation as a 'rocket docket' developed over the same time Ward has been on the bench. Ward is the rocket's pilot, having played a fundamental role in both the meteoric rise of the court's standing in patent litigation and in the latest legal changes that could spell the rocket docket's demise.

Ward's prominence

Ward's position keeps him in high demand as a speaker at patent legal conferences throughout the country. This week, for example, he is in New York to speak at the Patent Law Institute. But when contacted by the Record, Ward politely and humbly declined a chance to talk about the topic of his speech, or his expertise.

"I'm just offering some helpful hints for lawyers about things we judges like to see," he said in late February.

Ward dismissed talk that he was a leading expert in the patent field, again declining to answer questions about the current state of patent litigation.

"I was a trial lawyer for 31 years and now I'm a trial judge," he said. "There really isn't much more to say about me that that."

Many legal experts in the patent field disagree with Ward's humble self-description, noting that few judges are as widely credited for their knowledge and their controversial impact. One attorney even went so far to say Ward thrives on the attention his prominence in patent law affords him.

"If you've heard him speak at the conferences, he loved the attention. He does enjoy it," the lawyer said. He also described Ward as a judge who believes "most if not all patent cases should be heard in his court."

Ward is a native Texan, who attended Texas schools, including Baylor Law School. According to profiles written about the judge, Ward first became interested in patent law when defending Hyuandi, who had to pay more than $27 million when it lost a lawsuit filed against it by Texas Instruments.

President Bill Clinton nominated him to the bench in 1999.

At the height of its rocket-docket fame, Ward handled the vast majority of all patent cases in East Texas, due in part because he said he enjoyed the intellectual challenge of these cases, according to a story in the Dallas Morning News from 2006.

"When I came to bench, I sought out patent cases," he said.

When Ward arrived the court heard just over a dozen patent cases a year, which climbed steadily in the years that followed, to its high in 2007.

Washington, D.C., defense attorney Peter Strand of Shook, Hardy & Bacon, credits Ward with his interest and knowledge in patent cases, but also in shaping the local court rules that allowed the cases to rise dramatically since Ward's arrival.

"Ward was one of the first who developed what they call 'local patent rules' which quickly helped the court become viewed as a 'rocket docket.'" Strand said.

Ward's rules are not uncommon to other courts, lawyers interviewed for this story said. But he did push them further than most, ensuring that cases wouldn't languish.

Ward's rules established a rapid trial calendar which benefited plaintiffs, who could take as long as they wanted to plan their case before filing, leaving defense attorneys a step behind once the case was filed, Los Angeles-based intellectual property attorney Steven Sereboff said.

"Defense attorneys start so far behind the curve," he said, "and in a case that's rushed you have to hurry your defense."

Ward's rules aren't limited to the schedule. The rules sanction lawyers who abuse the discovery proceedings, greatly limiting the time allowed on opening and closing arguments, and even using a chess clock to keep strict time limits, according to published reports.

Some argue the efficiency cuts legal costs for both sides in the case while others claim they are designed to assist plaintiffs.

Atlanta-based patent attorney Alan McDonald said "Ward had a tendency to weigh only the convenience of plaintiffs."

Ward has been quoted in other articles defending his record, pointing to the fact that only one case in seven years was overturned from 1999 to 2006.

"The judges are very knowledgeable and strong, and they aren't afraid to rule a patent invalid," Sereboff said of the East Texas court.

Change of flight pattern

Prior to the rulings in the Volkswagen and TS Tech cases, the rocket docket had already showed strong signs of slowing down. According to the court files, the number of patent infringement cases dropped from 234 in 2007, to 148 in 2008.

Texas-based plaintiff attorney, Thomas Melsheimer of Fish & Richardson, said the attraction for plaintiffs also served to backlog the courts to such a degree that even Ward's rules didn't speed them to trial.

"East Texas is suffering from the old Yogi Berra adage that 'Nobody goes there anymore, it's too crowded.' Melsheimer said. "The popularity of the Eastern District as a good forum has resulted in an abundance of patent filings that has slowed the 'rocket docket' considerably."

Strand agreed.

"Because so many people have filed there, instead of being 18 months to trial, they are taking as long as three years, which takes a lot of the luster off the 'rocket docket.'" Strand said.

Ironically, the rocket docket became a victim of Ward's own success at creating it. At the height of the case filings, Ward recognized the cases taking up to a year longer than they had previously.

"I've just got too many cases," he told the Dallas Morning News in 2006.

"Almost every judge in the country owes Judge Ward a debt of gratitude for taking on a disproportionate share of difficult, complex, and time consuming cases," Melsheimer said. "It's not like Judge Ward manufactured patent cases on his own; if those cases weren't filed in Marshall, they would surely be filed somewhere else, in someone else's court."

And even Ward's critics say in Ward's court, you were assured a knowledgeable judge with a high interest in the case.

Sereboff said on the whole particularly with the overcrowded docket causing lengthy delays, the East District court may not be as bad for defendants as it was once viewed.

"The things that made it such a formidable place for plaintiffs are the things that have changed to make it less formidable now," he said.

The combination of the U.S. Supreme Court's refusal to hear Volkswagen this week and the writ of mandamus issued by the 5th Circuit in December appears to be lightening Ward's load in 2009. But the long-range impact on the East Texas court in general, and Judge Ward specifically, remains to be seen.

"We're starting to see defendants file for change of venue," McDonald said of the legal fallout. "We haven't seen any case come down from Judge Ward, but we have seen transfers made by other judges in the district. No one really knows what Ward is going to do."

Except, of course, Judge Ward, but he wasn't saying when asked.

"I don't think it would be appropriate to discuss any of that, especially as it pertains to pending litigation," he said.

One thing is certain, Judge Ward's legacy, and prominence in patent law will survive unchallenged.

"I doubt that Judge Ward worries about his reputation, which has been established as excellent over many years," said University of Houston Law Professor Paul Janicke, a leading authority in patent litigation. "The practice impact is that district judges will display more caution in ruling on transfer motions, giving explicit attention to convenience factors."

If it's true the rocket docket in East Texas is coming to a far slower burn, it is equally true Judge John Ward remains the captain of the ship.

Marshall Division patent cases

A five year overview of patent infringement lawsuits filed in the Marshall Division of the Eastern District of Texas, as of Feb. 18, 2009:

Jan. 1 to Feb. 18, 2009: 12 cases filed

Jan. 1 to Feb. 18, 2008: 26 cases filed

Jan. 1 to Feb. 18, 2007: 11 cases filed

Jan. 1 to Feb. 18, 2006: 19 cases filed

Jan. 1 to Feb. 18, 2005: 7 cases filed

Jan. 1 to Feb. 18, 2004: 7 cases filed

All 2008: 148 cases filed

All 2007: 234 cases filed

All 2006: 134 cases filed

All 2005: 101 cases filed

All 2004: 67 cases filed

Source: Public access terminal for Eastern District of Texas

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