If you want to know how ridiculous patent lawsuits can get with our current system, consider the following: Imagine you went to trial for murder, on a transparently trumped up charge. However, when you tried to plead “Not Guilty,” the Judge slapped you down, saying you had to ask his permission first and instead entering a guilty plea before you ever got a chance to present evidence.
Ridiculous, right? Well, until very recently, this was exactly the situation that defendants against patent lawsuits found themselves in if they were brought before Judge Rodney Gilstrap of the Eastern Texas District Court. Gilstrap had instituted a Kafkaesque rule that anyone seeking to invalidate a patent based on Section 101 of the Patent Act would have to ask his permission first, despite the fact that filing such a motion is a constitutional right. Worse, the rule might as well have been universal, since the overwhelming majority of patent lawsuits were and are filed in Gilstrap’s court.
Naturally, patent trolls and other frivolous litigants loved Gilstrap’s rule. However, when the ongoing and pointlessly contentious fight over reform of the patent system actually started casting light on just how abusive that system actually is, rules like Gilstrap’s became exhibit A in the case for reform.
While the case for reform remains strong, it appears that even sans official reform, even discussing the issue has had one decent side effect: on November 10, Gilstrap eliminated the rule. Reuters explains:
Gilstrap issued a standing order on Tuesday that eliminates the need to request his permission before filing a motion to dismiss an infringement case based on Section 101 of the Patent Act, which states that inventions claiming laws of nature or abstract ideas are not eligible for legal protection.
For those accused unfairly of patent infringement, this is a huge win, and further proof that the reform fight is itself a good thing for the system. Nevertheless, it does ignore the root cause of the problem that most likely pushed Gilstrap to make his absurd rule in the first place. That is, it’s not that Gilstrap was necessarily a bad judge. It’s just that he gets more patent cases than any one man could be expected to hear fairly. And while this rule was definitely one factor that encouraged frivolous litigants to file their suits in a court that has become known as the patent “rocket docket,” it’s hardly the only thing about Gilstrap’s court that puts defendants at a disadvantage. Nor is it safe to assume that, absent reform, judges like Gilstrap will police themselves to avoid entrenching such advantages.
There is a solution, however, in the language of the two reform bills currently making their way through Congress, both of which include some variety of venue reform. That is, they restrict the ability of litigants to game which District Court they use to file their lawsuits. This is key to the principles of legal justice: after all, we don’t let the venue for the Super Bowl be decided by one of the two competing teams, nor do we let one team’s coach handpick the referees. But in patent lawsuits, that is precisely what does happen, which inevitably turns Gilstrap’s court itself into a giant political and legal football.
Gilstrap is to be commended for actually acting the part of a referee and reversing what has been a bad call of his for years. But the environment he works in almost demands that he keep making such bad calls just to manage the number of cases he has to sift through. The spotlight created by the patent debate may curb the worst abuses, but only resolving that debate with reform will eliminate them wholesale.
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