Last month, I wrote about how AIPLA (a patent lawyers' group) weighed in on this case, trying to get more transfers out of E.D. Texas and head off more heavy-handed venue reform legislation pending in Congress. (May IPLB story, free reg. required)
Since then, there's been a very interesting development: a group of East Texas trial lawyers formed the "Ad Hoc Committee of Intellectual Property Trial Lawyers in the Eastern District of Texas" to fire back at AIPLA's brief. The brief, linked below, is authored by Sam Baxter of McKool Smith, the "unofficial president of the unofficial boys club in East Texas," according to American Lawyer.
The brief has more than 40 signatories, and was written out of "a concern that the decisions of judges in the Eastern District have been unfairly characterized in AIPLA's brief." (AIPLA President Jim Pooley was pretty kind to Ward when I interviewed him, calling E.D. Tex a "victim of its own success.")
Baxter writes: "The Eastern District has unjustly garnered a reputation as a place where large corporations are dragged against their will, particularly in patent cases, and given a good thrashing. This reputation is largely a myth." He notes that lots of big companies have been more than happy to file lawsuits in E.D. Tex, hoping to use the pro-plaintiff perception of the district to their advantage.
Judges in the Eastern District actually do regularly transfer patent cases, Baxter argues, citing several recent transfers. I haven't looked, but I wonder if the cases he cites had plaintiffs that didn't oppose transfer, or related cases in another district. It's not unusual for small patent-holding companies to set up shop in E.D. Tex, sue distant defendants, and be able to keep them there. For example, Emeryville-based LeapFrog paid two Bay Area patent lawyers $7.5 million to avoid an E.D. Tex trial in November; Judge Ward refused their motion to transfer.
I've yet to talk to a non-E.D. Tex lawyer who thinks the judges there transfer much at all. They also are seen as giving summary judgment reluctantly, speeding discovery, and delaying claim construction, all practices that favor plaintiffs.
Documents related to In re Volkswagen, 07-40058 at the 5th Circuit: