You wouldn't expect that one of the busiest courts for patent law lies in the Piney Woods of the Eastern District of Texas, where for the past decade or so Judge T. John Ward has presided. Ward, 68, announced his retirement in order to sign up as the sixth lawyer at his son's firm, Ward & Smith Law Firm of Longview, Texas, a town of 81,000 hugging Route 20, between Dallas and Shreveport, La.
Ward, who graduated from Texas Tech in 1964 and Baylor Law School three years later, joined the bench in Marshall, Texas, halfway between Longview and Shreveport, in 1999 after a career as a litigator. The last case he tried as a lawyer, Ward says, was a patent trial in federal court in which his San Francisco co-counsel lamented the way matters progressed. "I heard a lot of times, 'Gee, if we had the Northern District of California rules [for patent cases], we wouldn't have these problems,'?" Ward recalls.
As a judge, he quickly did something about that. One of his first cases was a patent suit. Ward and clerk Charles "Chad" Everingham prepared for a Markman hearing, in which a judge determines the meaning of key words at issue in a patent claim. During the first 15 minutes of the hearing, the parties agreed to the definition of three terms after a brief argument from the plaintiffs. "It was apparent the lawyers had not conferred," Ward says. He called a two-and-a-half-hour recess, after which the parties agreed to almost all the terms. Unhappy that he'd wasted time preparing for the hearing, Ward asked Everingham to get him a copy of the California rules. "I saw they had a procedure that would have eliminated what had just happened," he says. "I took those rules and adjusted some things, and little did I know that was going to open the floodgates."
The rules allowed patent holders to get to trial more quickly and made Ward's Texas court a magnet for patent litigation. In 1999, he had less than 20 patent cases on his docket; when he retired, 241 were pending.
"The adoption of the Northern District of California patent rules helped streamline cases before Judge Ward and thus made the venue more attractive for patent holders," says Edward Reines, a litigation partner at Weil, Gotshal & Manges LLP in Silicon Valley and the chair of the Northern District's Patent Local Rules Committee. The California rules "crystallize the parties' contentions early in the case," he adds, which makes discovery more efficient.
The Eastern District of Texas also appealed to patent holders because they could file in one of six divisions and be confident of getting a specific judge. In addition to Ward, Judge Leonard Davis in Tyler is perceived as a favorable jurist. Davis, a computer programmer before attending law school, joined the bench in 2002. He "became interested in developing a docket with some of these cases, and I told him that the way to do that was to adopt these rules," says Ward.
Jurisdictions outside Texas have imitated Ward's court, Reines says, but plaintiffs are attracted to East Texas "by the long-standing perception that juries in the Eastern District of Texas are respectful of government rights like patents more than the average American juror and are generous when it comes to damages awards." Research suggests that patent holders won 80% or more of the cases brought there compared with 60% elsewhere, says Robin Cooper Feldman, a professor of patent law at the University of California, Hastings College of the Law.
That soon led to complaints by tech companies that Ward was overly friendly to plaintiffs, especially so-called patent trolls, and the U.S. Supreme Court, the Court of Appeals for the 5th Circuit and the Court of Appeals for the Federal Circuit, which has jurisdiction over patent cases, all tried to rein in the Eastern District. The America Invents Act signed by President Barack Obama in September also aimed to curb excesses. Feldman points to a provision that prevents a patent holder from suing unrelated companies in a single lawsuit without their consent that she says "was meant to shut down some of the activity in the Eastern District of Texas." In the days between passage of the bill and Obama's signing it, she says, nonpracticing entities filed a slew of multiparty lawsuits, suggesting they expect the new provision to shut down the tactic.
Ward's court has seen the average time from filing a case to trial rising to three years from 18 months, a big benefit for defendants. Nevertheless, Reines says, "I expect it will remain an important jurisdiction for patent litigation," due to Davis and other judges who have followed Ward. Obama nominated Rodney Gilstrap, a lawyer in Marshall, to replace Ward, and the Senate Judiciary Committee has confirmed him, with a full Senate vote expected by year's end.
Ward had planned to take senior status, with its reduced workload, but then his son Johnny Ward, a trial lawyer with expertise in patent law, asked him to join his firm. Ward mulled the offer and says some of his colleagues encouraged him to work with his son. Two of the judge's old briefing attorneys, Claire Abernathy Henry and Wesley Hill, also work at Ward & Smith.
Ward won't be able to litigate before his old court for a year after leaving the bench. The same restriction will also apply to Everingham, who after clerking for Ward from 2000 to 2007 became a U.S. magistrate in 2007. He left that spot in October to join Akin, Gump, Strauss, Hauer & Feld LLP as a patent litigator.