Roberts to Congress: Thanks, but we’ve got it all under control

For 2022, the Chief Justice leans into an alternative view of judicial independence. Will it be enough to keep Congress at bay?

Chief Justice Roberts’s 2021 Year-End Report on the Federal Judiciary, dropped (as always) on New Years Eve, struck a more substantive and somewhat edgier tone than in years past. The Chief Justice identified three particular areas of focus for the Judicial Conference of the United States in the coming year: addressing financial disclosure and recusal obligations for federal judges, monitoring new mechanisms for reporting and stopping workplace harrassment, and preventing undue forum shopping in patent cases.

All three of these issues have been the subject of regular, and sometimes intense, Congressional scrutiny in recent years. But the Chief Justice’s report largely rejects the prospect of legislative fixes. Rather, consistent with the federal courts’ approach to the workplace harrassment scandal when it first broke in 2017, Roberts assures his readers that the Judicial Conference is willing and able to handle each of these issues internally. 

It’s not to see why the Chief Justice would go this route. As this blog has routinely described, the federal courts (like all courts, and indeed all organizations) operate under constant pressure from their external environments. Neoinstitutional theory identifies three types of pressure: coercive (the need to comply with legislation and other government mandates), mimetic (the need to be in line with similar institutions in order to maintain legitimacy), and normative (the need to adhere to social and professional norms). The federal courts face all three types of pressure, but are particularly susceptible to coercive and normative pressures. If the federal judiciary is not seen as ethical and apolitical, it will face Congressional action and lose legitimacy with the bar, the media, and the public. 

There is no question that the pressure has been turned up in recent weeks. The Wall Street Journal‘s expose on federal judges who failed to recuse from cases in which they held a financial stake was a significant blow to the judiciary, and has invited Congressional hearings. Some in Congress have used the scandal as an opportunity to resurrect additional transparency proposals, including courtroom cameras and free PACER access. And, of course, the progressive effort to pack the Supreme Court looms in the background, along with the ongoing politicization of judicial confirmation hearings and the Supreme Court’s forthcoming decisions on abortion and gun rights. It is fair to say that the federal courts are currently facing more external pressure and scrutiny than at any time since the 1960s. Continue reading “Roberts to Congress: Thanks, but we’ve got it all under control”

Defendant seeks delay of major patent trial due to COVID

The primary defendant in a major patent case pending in the U.S. District Court for the District of Delaware has requested a delay of its scheduled trial due to concerns about conducting an in-person trial while COVID-19 rages on.

3G Licensing sued LG Electronics and others more than four years ago, alleging infringement of U.S. Patent No. 6,212,662. The patent concerns a method and devices for detecting transmission errors in data streams. Trial is scheduled for April, but in a letter to the court LG’s counsel worried about the ability to get a representative jury in the midst of a pandemic.

Courts have struggled to deal with trials during the coronvirus surge, with most delaying in-person trials or attempting to conduct them over video. Notwithstanding tireless efforts to assure due process and transparency for all parties, reactions to the videoconferenced trials have been mixed. At some point this year, courts should return in earnest to in-person trials (and will likely have a serious backlog to deal with). But it’s not fully clear whether that moment will come as soon as April.

Federal court will conduct three-week patent trial via Zoom

A federal judge in the Eastern District of Virginia has ordered a patent infringement trial to proceed as scheduled on May 6. The entire trial will be conducted through the Zoom videoconferencing platform. It is expected to take about three weeks.

Plaintiff Centripetal Networks, Inc. alleges that Cisco Systems is infringing five of its patents for network technology. The case was filed in early 2018.

Cisco opposed the Zoom trial, arguing first that it would expose its proprietary technology to the public, and second that if the trial were to go forward via videoconference, it would be safer to hold it through Webex rather than Zoom. Cisco owns the Webex platform. The court rejected both arguments.

Earlier this month, a Texas state court held a one-day bench trial via Zoom. But this is a much more complex case, involving multiple claims, patents, and witnesses. If it proves successful, it may open the door to many more bench trials being conducted remotely. If the court and parties encounter major technical glitches, however, it may set back the movement for remote trials considerably.

Patent filings in Eastern District of Texas fall 68% after TC Heartland decision

For many years, plaintiffs in patent infringement cases flocked to the Eastern District of Texas, spurred by welcoming judges, rocket docket scheduling, and a belief that they would find plaintiff-friendly juries. Defendants in the same cases naturally chafed at having to defend in the Eastern District, especially when there was little, if any, connection between that location and the allegedly infringing activity.  This led to hundreds of defense motions to transfer venue to another federal district court–motions that were usually denied by the local judges who wanted to keep the cases in their district. The Eastern District dominated the national patent docket, with well over a thousand infringement cases filed in the district each year.

That all changed last year, when the Supreme Court’s in TC Heartland v. Kraft Foods read the federal venue statutes to severely limit where patent infringement cases could be brought. No longer could a plaintiff assert a reasonable connection to the Eastern District of Texas just because some defendant sold an allegedly infringing product there. Unsurprisingly, the new restrictions have led to a drastic drop in filings in the Eastern District, and a growth in filings in the District of Delaware (where many business defendants are incorporated), among other venues.

It will be interesting to see where things settle in the coming years.

 

Patent infringement case filings dip to their lowest level since Q3 2011

IP Watchdog has an excellent breakdown.  And this part of the analysis seems spot on:

Past litigation reports from Lex Machina have pointed to the fact that volatility in patent case filings are typically triggered by changes to the patent system, or even just proposed changes. Spikes in patent litigation have closely preceded changes like the abrogation of Form 18 to plead patent infringement in district court as well as the enactment of provisions of the America Invents Act. Given the fact that the debate on patent reform isn’t currently reverberating in Congress the way it has in recent years, it’s possible that the recent downturn in high-volume plaintiff filings is due to calmer waters in the patent system. The next foreseeable change to the U.S. patent system stem from the U.S. Supreme Court’s upcoming decision in TC Heartland v. Kraft Foods Group Brands, so it will be interesting to see if the court’s ruling in that case creates any similar volatility in case filings.