21 July 2017

I'm Not a Big Fan of Politicians Going After Judges, but Rodney Gilstrap is the Exception to this Rule

The Federal District Court for the Eastern District of Texas is notorious for its support of patent trolls, and Judge Rodney Gilstrap is notorious for this even among the judges in that district.

Personally, he has literally been the judge presiding about ¼ of all patent cases in the United States.

He also has a history of taking Supreme Court solutions and applying them in remarkably bad faith.

Case in point, when, in Alice Corp. v. CLS Bank International, the Supreme Court ruled that patents that just added a computer to ordinary activities are invalid, Gilstrap required that defendants ask for his permission before filing to have a patent dismissed, which appears to functionally eviscerate the Supreme Court ruling, which calls for a quick dismissal of bogus patents:
For companies that get hit with lawsuits over obvious patents, the best chance they've got to fight back is last year's Supreme Court decision in Alice v. CLS Bank. Now patent defendants are often able to get a judge's opinion at an early stage of the case about whether the patent was too obvious to grant in the first place.

Patent cases still aren't cheap, but for those willing to fight, Alice is turning the tide in defendants' favor—just not in East Texas.

US District Court Judge Rodney Gilstrap, who presides in Marshall (pop. 25,000), hears more patent cases than any other judge in the country. He has gone out of his way to place additional barriers in the way of defendants seeking to knock out bad patents under Section 101 of the patent laws. That's the section that Alice relates to, which the Supreme Court said should be used to knock out "do it on a computer"-style patents.

Recently, Gilstrap published an order saying any defendant who wants to file an early motion under Section 101 "may do so only upon a grant of leave from the Court after a showing of good cause, which shall be presented through the letter briefing process."
 Under pressure, he subsequently partially reversed himself, but it's still pretty out of line.

It's gotten so bad that, in TC Heartland v. Kraft Foods, the Supreme Court specifically tightened up on venue requirements, requiring suits be filed only, "Where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business."

Well, now Gilstrap has decided that having a single employee working from his home constitutes a "Regular and Established Place of Business."

Yet under the new rules, Gilstrap still wouldn't let Cray out of the district. Cray's only tie to the district was a single salesperson, who worked out of his home in the Eastern District. In the judge's view, though, that was enough to find that Cray had "regular and established" business in the Eastern District and would have to face trial.

Gilstrap's controversial interpretation of the TC Heartland decision has been scorned by lawmakers who have supported patent reform efforts. In a hearing about the US patent system last week, Rep. Darrell Issa (R-Calif.) said Gilstrap's move "rejects the Supreme Court's unanimous decision" and was "reprehensible."
I do not know what Gilstrap's angle is, it could be something as benign as his desire to bring revenue (office rentals, hotel and hospitality, etc.) into Marshall, TX, or it could be that he hopes to get a lucrative partnership in an IP lawfirm when he retires, or maybe he's just a nut who gets off on being the center of attention.

Whatever the case might be, it is clear that something is very wrong, and the chairman of the House Judiciary Committee and the IP Subcommittee have both condemned the judge:
Two members of the House judiciary committee have criticised Judge Rodney Gilstrap for his interpretation of TC Heartland v Kraft Foods, going as far as to suggest that he is putting the needs of the Eastern District of Texas above serving justice.

Speaking at a House judiciary committee hearing on patent law last week, Republican Darrell Issa described Judge Gilstrap’s recent interpretations of the Supreme Court’s TC Heartland decision—which limited the filing of infringement suits to the plaintiff’s state of incorporation—as “an act I find reprehensible”.

House judiciary committee chairman Bob Goodlatte, without naming Judge Gilstrap, said in his opening statement at the hearing: “Unfortunately, one judge in this district has already re-interpreted both the law and the unanimous Supreme Court decision to keep as many patent cases as possible in his district in defiance of the Supreme Court and congressional intent.”

The hearing came as defensive patent aggregator Unified Patents reported a 50 percent drop in disputes seen in the Eastern District of Texas in the first half of 2017.

Issa said at the hearing: “Only two weeks ago, Judge Gilstrap interpreted the TC Heartland decision in a way that rejects the Supreme Court’s unanimous decision and at least, for the time being, ensures that as many of the cases as possible will remain in his court room.”
Not only do I approve of calling out this judge, I approve of Darryl Issa* calling out the judge by name.

As an FYI, this nutjob wasn't appointed by a 'Phant.  Obama appointed him,

I'd really like to know what's his deal though.

*I cannot believe that I just said that.  Issa is a nasty ratf%$# and he was for a long time before he went into politics.


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