Thursday, July 30, 2020

In Judge Gilstrap's Eastern COVID of Texas, patent trolls trump public health concerns: PanOptis v. Apple trial to go forward regardless

Another day, another post calling out a court obsessed with advancing the cause of patent assertion entities and prepared to compromise public health in the process. Yesterday I reported on a courtroom insanity of potentially pathological proportions in Munich (Nokia v. Daimler), but regrettably a similar problem exists in the Eastern District of Texas--Munich's role model in some respects--on an even larger scale.

I think hard and long before naming and shaming judges, but Judge Rodney Gilstrap has hit a new low by exposing well over 100 people to significant health risks, and dozens of them over the course of several weeks, only because he's worried about his court's ability to attract patent troll lawsuits. He's made other decisions over the years that one can or must respectfully disagree with. This month he's done something no reasonable person could possibly accept, much less condone--except for the most ruthless and reckless patent trolls out there, maybe.

The Eastern District of Texas hasn't really made itself a name as the cradle of patent litigation sanity, but at least one used to associate the region with honest, hard-working, mostly conservative people leading a healthy rural life in their picturesque cattle towns, remote from whatever may plague more densely populated areas such as the nearby Dallas-Fort Worth metropolitan area. Unfortunately, certain parts of East Texas, such as Harrison County (where the Marshall division of the United States District Court for the Eastern District of Texas is based), have very recently been designated as "Red Zones" from an epidemiological perspective.

In that town--Marshall, TX--a notorious standard-essential patent (SEP) troll, PanOptis, is suing Apple over some wireless SEPs. The original trial date was pushed back by about a month as the spread of SARS-CoV-2 slowed down preparations. A couple of weeks ago, Apple moved (again) in light of COVID-19 for a continuation (postponement) of the trial that is now set to kick off in that corona hotspot in a few days' time (this post continues below the document):

20-07-14 Apple Motion to Co... by Florian Mueller on Scribd

To its motion, Apple attached a declaration by Dr. Robert Haley, M.D., professor of medicine and epidemiology and chief of the Division of Epidemiology in the Department of Internal Medicine at the University of Texas Southwestern Medical Center in Dallas, explaining the public health concerns raised by such a trial (this post continues below the document):

20-07-14 ExhA Dr. Haley Dec... by Florian Mueller on Scribd

Apple's proposal was to wait until early October and re-evaluate the situation then. Obviously Apple, like pretty much any defendant to a patent infringement suit, may be suspected of "stalling" when bringing such a motion. But a litigant's motives don't matter when the public interest--specifically, the health of counsel, court staff, and the local community (potential and actual jurors)--is at stake. The facts are clear:

  • PanOptis brought that case in February 2019, less than 18 months ago. Judge Gilstrap overemphasizes speedy resolution when he's worried about a delay at this point.

  • Not only is any patent case, by definition, less time-sensitive than whatever may involve capital crimes or terrorism, but this one is even particularly non-urgent by the standards of a patent case, given that PanOptis is merely seeking to be compensated monetarily (no prayer for injunctive relief).

  • Obviously, the situation may not be better by early October. Chances are it will get even worse. But in that case, another delay may be inevitable. It's not about anyone's crystal ball forecast, but about the hard facts stressed by Apple's motion and the attached declaration by a leading Texas-based epidemiologist, which outweigh by far and away a patent troll's interest in a rocket docket and a judge's ambition to let his court maintain the status of a patent litigation hotspot--when the real concern is that it's presently a corona hotspot.

  • On the bottom line, it should have been a no-brainer to grant Apple's motion, even at risk of slightly discouraging other plaintiffs from filing new cases in that district.

But--guess what--Judge Gilstrap denied Apple's motion (this post continues below the document):

20-07-21 Order Denying Appl... by Florian Mueller on Scribd

Judge Gilstrap complained about the timing of the motion, when the Governor of Texas himself just put some rules in place this month as he recognized an escalating health crisis. Judge Gilstrap is so unbalanced. He's apparently very happy about the fact that key expert witnesses from Europe won't be able to testify in person due to corona-related travel restrictions. Ironically, the countries from which those witnesses hail have far lower COVID-19 infection rates than Texas. In fact, it is roughly 200 times less likely someone from China is corona-positive than someone from Harrison County.

He ordered Apple's lawyers to arrive for the pretrial conference three days early and to stay through the trial. They can't go home in between. Whether Texas or California is the better or worse place to be these days in terms of COVID-19 is another question, but the benefit of that order is hard to see.

At some point there'll be several dozen prospective jurors (the venire) in the room, plus counsel. It will get somewhat crowded. But all that Judge Gilstrap points to in his scandalous order comes down to "encouraging all participants to follow the [Center for Disease Control]'s community-mitigation guidelines." This means people are recommended to wear masks, but as the pretrial conference showed, they won't. Face shields will be in use, but they aren't anywhere near as effective as masks, particularly not when the concern is centered around aerosolized infections in a closed-room setting.

While the order says the court would "preclude entrance to the Courthouse to those [...] who exhibit fever, cough or shortness of breath," it remains to be seen how consistently this rule will be enforced...

In case you're interested in further facts that show just how absurd Judge Gilstrap's course of action is, you may also find Apple's reply brief informative (though it was stricken by the court).

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