Patent litigation cools in the Eastern District of Texas

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2026

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Cookies Settings

Patent litigation cools in the Eastern District of Texas

Judge Gilstrap 165

The Eastern District of Texas has suffered a disproportionate drop in patent cases so far this year, although it remains by far the busiest district. This has led Judge Gilstrap to discontinue the use of letter briefing for 101 motions, as well as the "in person" meet and confer requirement for discovery motions

Managing IP has just published an analysis of US district court litigation, revealing trends and the top plaintiffs, defendants and law firms. Subscribers and triallists can read it here.

2016 so far this year is down on last year. the 2,264 cases in the first half was down 15% on the 2,672 in the second half of 2015 and down 27% on the 3,098 cases in the first half of 2015.

One interesting finding is that the Eastern District of Texas has suffered a disproportional drop in litigation, although it remains by far the busiest district for patent litigation. In the first half of the year, 772 of the 2,264 total cases were filed in the Eastern District of Texas – or 34.1%. This compares with a figure of 44.2% of all new patent cases in the whole of 2015.

H1 litigation by district

Michael Smith, partner in charge of the Marshall office of Siebman Burg Phillips & Smith, noted in a post on the EDTexweblog that the district is seeing the same "bounce back" in filings in the second quarter as other districts but the filing rate is still down about 40% on last year.

Smith noted that bulk filer cases are down, traditional patent case filings are up and there are fewer bulk filer cases than traditional cases.

"[M]ost notable of all is that the second quarter of 2016 marks the second consecutive quarter that 'high volume/bulk filer’ cases made up less than half of the patent filings in the EDTX," said Smith.

Filing by non-practicing entities – who largely favour the Eastern District – is down so far this year, and disproportionately so compared with operating companies.

The question is whether it will remain so. The number for the Eastern District of Texas was affected by the rush to file cases ahead of new Federal Rules of Civil Procedure that became effective in December last year. More than 800 cases were filed in November 2015 – by far the biggest month in recent times – and you can bet the majority of them were NPE suits in the Eastern District of Texas. So not only did this boost 2015’s figures, it will have served to suppress the district’s figures so far this year.

Beyond this, however, the Eastern District can expect the number of cases it sees to remain lower than it has seen in recent years. The district’s judges seem to be taking actions that suggest they expect fewer cases.

On his blog, Smith at Siebman Burg Phillips & Smith noted that earlier this month Chief Judge Clark issued a new case assignment general order that reflected Judge Schneider's departure from active duty in Tyler. This means that for the first time since at least 1947 Tyler has no active federal district judge. Smith said that the downtick in new patent filings gives the district’s other judges capacity to handle some additional Tyler work (although he did not include Judge Gilstrap – the nation’s busiest patent judge – in this!).

Smith also noted that with the decreasing number of cases, “some of the more ‘emergency’ procedures that local judges have adopted are going away as well”.   

Judge Gilstrap

“For example, several months ago Judge Gilstrap discontinued the use of letter briefing for 101 motions, and more recently the ‘in person’ meet and confer requirement for discovery motions was removed from pending and newly-filed cases,” he said.

This month, Gilstrap (right) issued new docket control orders for patent cases that also discontinued letter briefing for other types of summary judgment motions in patent cases, and replaced them with requirement for submission of paper copies, with some electronic requirements as well, in the court's preferred format.

All of which is to say, while the number of cases filed in the Eastern District is still ridiculously higher than any other district, its share is falling for now. Maybe fewer operating companies will consider sponsoring ice rinks in Marshall as a result. 


 

more from across site and SHARED ros bottom lb

More from across our site

The firm reveals how its litigation strategies informed the arguments that took Masimo’s judgment past $818 million
The firm was rebuilding its IP practice through a string of patent hires and a Texas expansion, but its dissolution has put the newly built talent back into the market
AI can exploit longstanding gaps in copyright protection at remarkable speed, but EU law still provides tools to fight back, says Simon Hembt at Bird & Bird
The firm has tapped a local patent trio to establish a foothold in the market and broaden its national presence
New Asia-Pacific IP head Jonathan Chu is eyeing opportunities arising from Chinese technology licensing, overseas enforcement and increasingly IP-heavy cross-border deals
Europe’s largest intellectual property convention and trade fair is back: IP Service World 2026 takes place in Munich from November 23–25 – the 16th edition, with 1,400-plus attendees from 55-plus nations, 100-plus speakers, and 100-plus exhibitors. Three days. Two focused areas. One IP marketplace.
Mehmet Gün and Uğur Aktekin discuss four decades of change in Türkiye’s legal market, the firm’s commitment to independence and the challenge of building an institution that can outlast its founders
Boehringer Ingelheim has instructed a team from Kirkland, while Teva is being represented by Pinsent Masons
The Delhi High Court’s latest directions offer an opportunity to move beyond remedies against bad-faith registrations and address how suspicious applications are identified in the first place, says Fatima Baig at Lexlinc
Camilla Hamrin describes how the acquisition by Acapo Onsagers will impact Bergenstråhle’s trademark practice – and reflects on changes she has seen over 30 years in IP
Gift this article