Google Follows Newegg In Going Over East Texas Court's Head To Ask Court Be Ordered To Do Its Damn Job

from the issue-the-ruling-already dept

So we had just written about Newegg — after waiting 20 months for a ruling in a patent case — going to the Court of Appeals for the Federal Circuit (CAFC) to ask for an order telling the district court in East Texas to actually do its job. The move worked, getting Judge Rodney Gilstrap to finally issue the order (overturning a jury award on a bogus patent), but still taking the time to scold Newegg for daring to go above his head. We quoted Newegg’s top lawyer Lee Cheng pointing out that if, as Gilstrap stated, part of the issue was his overwhelming schedule, then Gilstrap and other East Texas judges should be much more willing to grant transfer requests to courts outside of East Texas. As has been known for the better part of a decade, patent trolls love to file in East Texas because the courts there are super friendly to trolls. There is no legitimate reason for them to be in Texas, though some of the trolls set up fake empty offices in Texas just to pretend.

Either way, it looks like Google took Newegg’s idea and decided to run with it as well. It, too, has now gone to CAFC to seek a writ of mandamus telling the East Texas court to rule on its request to transfer a patent troll lawsuit to Northern California:

This petition arises out of a patent infringement suit filed against Google by Brite Smart Corp. in July 2014, which was assigned to a magistrate judge. On October 24, 2014, Google moved to transfer the case to the United States District Court for the Northern District of California. The magistrate judge received Brite Smart?s response on November 10, 2014, and Google?s reply and Brite Smart?s surreply by December 1, 2014, but has yet to rule on the motion. Nonetheless, the magistrate judge has ordered the parties to engage in extensive discovery, including the taking of depositions and exchanging infringement and invalidity contentions, and held a Markman hearing.

At times, a lengthy delay in ruling on a request for relief can amount to a denial of the right to have that request meaningfully considered….


Here, Google filed its motion to transfer approximately eight months ago. Yet, despite the obligation to ?promptly conduct? such proceedings, … there has been no ruling, not even a hearing. Meanwhile, the magistrate judge has pressed forward with the case, proceeding through to the close of discovery and conducting both a Markman hearing and a hearing related to several discovery disputes. Brite Smart makes much of the fact that Google moved to supplement its motion to transfer. However, Google?s supplement amounted to less than two pages highlighting seven lines of deposition testimony. It does not account for the previous months of district court indecision. And Google expressly asked the district court to deny the request if it meant further delay on the transfer motion.

Given this passage of time and magistrate judge?s ordering of substantive development of the case, Google has made a compelling case that the magistrate arbitrarily refused to consider the merits of its transfer motion. We therefore direct the magistrate to rule on the motion to transfer within 30 days and to stay all proceedings pending completion of the transfer matter. We remind the lower court that any familiarity that it has gained with the underlying litigation due to the progress of the case since the filing of the complaint is irrelevant when considering the transfer motion and should not color its decision.

Again, it seems that there is no excuse for this, other than that the East Texas courts are buried under all these patent lawsuits, and the easiest way to deal with that problem is to promptly transfer out cases that don’t belong there.

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Companies: brite smart, google, newegg

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Comments on “Google Follows Newegg In Going Over East Texas Court's Head To Ask Court Be Ordered To Do Its Damn Job”

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CC says:

Hmm, this article is worded a little unclearly. The attached order shows the Fed Circuit granting Google’s order and forcing a ruling within the next 30 days on Google’s motion to transfer, but the wording of the article suggests that Google just now filed its petition. (“[Google], too, has now gone to CAFC to seek a writ of mandamus telling the East Texas court to rule on its request to transfer a patent troll lawsuit to Northern California:”)

It might be helpful to make that clear in the article. It’s interseting because Google made the same request as Newegg but seems to have won. To the extent that this is a new trend among patent defendants in East Texas, it may show that the Federal Circuit doesn’t want to be forced to play babysitter and will take a harder line on delays by local judges.

Anonymous Coward says:

Note that in typical motion practice, a lawyer who is requesting a ruling includes, in the filing, a “draft” copy of the ruling as he hopes it would be issued. If the (often-very-busy) judge is happy with that draft, he can just sign the draft and go on with the next case.

Of course, there’s a fine line between “getting everything you want” out of a ruling, and “putting in so much that the judge will start writing his own orders from scratch”…a crooked lawyer without much of a case might just throw everything in the draft order and hope the judge is asleep.

AC for a reason says:

I, unfortunatly live in East Texas. The County Seat, Tyler is know to be the most crooked of courts in Texas, and the nation. These Assholes have been playing games with the law for far too long. Fast and Loose.
Lady Justice is blindfolded, with a pair of scales. Representing equal justice. Not in Smith County. The side of the courthouse has Lady Justice WITHOUT a blindfold. These bastards want to make sure you know where you are and what you are in for when you get inside the courthouse. Your about to get fucked if your a citizen. Pray you are not black. Being white won’t help you much either.

Have a look at Smith County Justice.
This book has been suppressed by the crooks that run this place for years. It is also rumored to have been the book the movie “Rush” was based on, which occured in the fictional town of Catterly, Texas. Clearly an anagram for Tyler, Texas.

Come on vacation, leave on probation.

asdf says:

Okay, some clarifications:

East Texas is a district, not a city. There are federal courthouses in Beaumont, Lufkin, Marshall, Sherman, Texarkana, and Tyler. Judge Payne, mentioned here, is in Marshall; John Oliver’s rant which surely half of you are picturing was set in Marshall; but the District is headquartered in Tyler, and that’s where a lot of these cases also happen.

These are not merely towns of 20,000 people looking for their 15 minutes of fame–Tyler’s metro area is about 250,000, which means there are multiple states without a metro area that large.

There are many reasons the nation decided to put software patent cases out here, not the least of which (and maybe the most of which) is that when these laws were first blossoming, there was only one judge on this level in the US who was a programmer before he became a judge. Everyone else majored in Political Science or History or whatever, but one man was a coder before he went into law. As such, only one judge at the time could read source code. As things go, he hired people he liked and eventually the Eastern District became uniquely qualified. Yes, inventors base themselves in Texas just to get access to these judges, but so do major tech companies when they sue other major tech companies. Watch the next time your favorite Silicon Valley tech corp sues your second favorite Silicon Valley tech corp–decent odds it’s not in Silicon Valley. Nowadays many judges in Silicon Valley and many other districts are highly qualified to oversee software cases, but 15 years ago, it was largely Leonard Davis.

Now, there are other reasons. First off, yes, politically, Texan Judges love to let juries decide. Second, cases are faster here, so corporations have a harder time just stalling until the inventor goes bankrupt (which is standard fare).

But the allegation that Texans always root for the little guy and plaintiffs always win has been debunked by many statistical surveys. Ask yourself what percentage of wins you’d need to see before you’d be convinced it was fair. The result shouldn’t be 50/50, because who jumps through these hoops let alone spends millions bringing these cases unless they have a case? And if it wasn’t valid, the Judge would throw it out and sanction everyone involved. Anyway those who analyze this stuff always come to the conclusion that if there was a time when plaintiffs got the easy end, that time has long since ended.


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