“A lot more technical knowledge is required in IP cases for the most part,” she says. “You just have to do a lot more studying in terms of matters outside the law. So, for instance, in all my IP cases I have lawyers do tutorials for me on whatever the technology happens to be. In most cases you are just studying the law, but in IP cases you are studying the law and trying to understand the technology.”
The Southern District of Texas was sounded out a couple of years ago about becoming a specialist court for patent cases, but the court declined.
“They wanted us to get the special designation of being a patent court because we had such a heavy IP docket,” says Gilmore, who took part in yesterday’s session on trade mark surveys. “We have enough cases. We weren’t particularly interested in getting a special designation, so as a court we decided not to seek that designation out.”
The IP caseload could be set to increase in any case. Texas’s Southern District now has the same rules about an expedited patent docket and special patent scheduling as the Eastern District of Texas. It also has an airport in a major hub, unlike the Eastern District. Judge Gilmore said it is not whether or not a case is IP or not that is important to her, but rather whether the lawyers involved are good or not.
“If I have good lawyers and they do a good job and they understand it is their job to make sure that the court understands what is going on, then it is fine. If I have bad lawyers that aren’t willing to do their work then it is not fine,” she says.
So what are some of the biggest mistakes IP lawyers can make?
“Not educating the judge well. Not showing up for Markman hearings with some piece of technology that they could easily bring for the court to see,” she says. “I’m in Texas so we do a lot of oil and gas and industry litigation in patents. So it’s a bolt, it’s nut, it’s a plunger, it is something I can see. People show up and they don’t bring me anything! And I say, ‘Can I actually get to see it? Is it too big to bring into the court room?’ And they say, ‘No, it fits in your hand.’ Well, it would have been really nice to have it.”
Judge Gilmore was given the dubious distinction of being a “judicial diva” by the Above the Law blog, a label she decided to embrace (and include in the title of her book “You Can’t Make This Stuff Up: Tales From a Judicial Diva”).
“I decided to own it,” she says. “First I was getting mad, then I was getting upset, then I thought, ‘You know what? Maybe I am a diva. I am just going to own this.’ I thought I can either get mad or laugh at it.”
