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`Gilstrap Eases Filing Of Patent Summary Judgment Motions Law360
`8/25/2016
`Case 2:15-cv-01274-JRG-RSP Document 138-7 Filed 08/30/16 Page 2 of 3 PageID #: 4375
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`Gilstrap Eases Filing Of Patent Summary
`Judgment Motions
`
`By Ryan Davis
`Law360, New York (July 22, 2016, 7:15 PM ET) Federal Judge Rodney Gilstrap of the
`Eastern District of Texas has done away with his previous rule that litigants in patent cases
`must get his permission before filing a motion for summary judgment, court papers show.
`
`Under an earlier docket control order, Judge Gilstrap required parties to submit fivepage
`letter briefs requesting permission to file a motion seeking summary judgment. But a new
`order Wednesday simply requires parties to submit two copies of the summary judgment
`motion, with no requirement to seek permission.
`
`The change will impact a large number of litigants since Judge Gilstrap hears by far the
`most patent cases of any judge in America. Last year, he was assigned 1,686 of the 5,285
`total patent cases filed in the United States, or 32 percent, according to the legal analytics
`firm Lex Machina.
`
`Michael Smith of Siebman Burg Phillips & Smith LLP in Marshall, Texas, who noted the new
`order on his blog, EDTexweblog, said that it is a “significant change.”
`
`“It will speed up the process a little bit,” he said. “You don’t have to go through the process
`of preparing a letter brief and waiting for a response.”
`
`The new order marks the second time in recent months that Judge Gilstrap eliminated a
`rule requiring letter briefing before filing motions in patent cases.
`
`In June 2015, he instituted a rule requiring litigants to get permission before filing a motion
`seeking to invalidate a patent under the U.S. Supreme Court's Alice ruling. He rescinded the
`rule in November. He also recently eliminated a requirement for parties to meet and confer
`in person about discovery motions.
`
`Judge Gilstrap has required letter briefs for summary judgment motions since he took the
`bench in 2011, and the rule had previously been used by other judges in the patentheavy
`Eastern District.
`
`“This rule change will eliminate the additional process that Judge Gilstrap used to
`essentially triage summary judgment motions and determine which ones deserve full
`briefing,” Smith said.
`
`The judges implemented the rule when the district's patent docket began to grow and the
`courts began getting a large number of summary judgment motions, Smith said. The judges
`granted permission to file motions in the majority of cases, he noted, and denied requests
`only when there was no real chance the motion could be granted.
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`Gilstrap Eases Filing Of Patent Summary Judgment Motions Law360
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`Case 2:15-cv-01274-JRG-RSP Document 138-7 Filed 08/30/16 Page 3 of 3 PageID #: 4376
`“For the ones that would obviously not be successful, you didn’t have to spend the money
`briefing them, and the court didn’t have to take the time to rule on them,” he said. “But it
`was a second layer of briefing you had to go through.”
`
`Some litigants file summary judgment motions for reasons other than thinking the motion
`will be successful, such as to educate the court about an issue. The judges decided they
`didn't want to spend time on motions like that, but they otherwise granted leave to file
`motions is most cases, Smith said.
`
`He added that since the number of patent cases filed in the Eastern District of Texas has
`been decreasing in recent months, Judge Gilstrap may have felt letter briefing was no
`longer necessary.
`
`To date, there have been 917 patent cases filed in the Eastern District of Texas in 2016,
`and 620 of them have been assigned to Judge Gilstrap. At this point in 2015, the district had
`seen 1,579 new patent case filings, 1,025 of them assigned to Judge Gilstrap.
`
`Editing by Jill Coffey.
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`All Content © 20032016, Portfolio Media, Inc.
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