Is the Win Rate for Plaintiffs Slipping at the E.D. Texas?
If you've read any of the multitude of articles on patent litigation at the E.D. Texas, you almost can't help walking away with the conclusion that defendants just can't win in the jurisdiction:
- Sam Williams, A Haven for Patent Pirates,Technology Review - "patent plaintiffs whose cases go to trial in Marshall win 88 percent of the time . . . compared with 68 percent nationwide. "
- Julie Creswell, So Small a Town, So Many Patent Suits - The New York Times - "patent holders win 78 percent of the time, compared with an average of 59 percent nationwide."
- Susan Decker, Texas district is heaven for patent holders under siege, The Seattle Times - "inventors and other patent owners have won jury verdicts 90 percent of the time since 1994."
As anyone that actually works in the patent docket can tell you around here, that just isn't true. Defendants have won half of the patent cases tried in the Eastern District this year, and the plaintiff's win rate in 2006 and 2007 combined is still only 66%. [Many patent cases] often show defense wins on summary judgment or other rulings.Accordingly, he's created a new tab in his blog for "Patent Cases: Recent Rulings for Defendants" (link). Adds Michael:
[The listing] isn't exhaustive, and isn't meant to indicate any predisposition by any of the judges or the district as a whole . . . It's just meant to give readers the ammunition to explain to their elected officials, and to anyone else that is interested, that defendants can and do win here, and that the outcomes have a lot more to do with the facts of the case and the quality of the lawyering than they do any perceived tendencies by the judges or juries.
Posts
The articles showing a high plaintiff win rate are specific to Marshall, Texas, while Michael Smith's analysis appears to be for the entire district. None of the "defense wins" on his web page happened in Marshall.
Not only that, but Michael Smith's blog doesn't reflect that in most "defense wins" in the Eastern District of Texas, the parties have had to completely prepare for trial, and summary judgment is given on the eve of trial. There are exceptions of course - but fewer exceptions than in other jurisdictions.
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