Appeals Court: Judge Can't Ignore the Supreme Court to Keep Patent Cases in TX(techdirt.com)
techdirt.com
Appeals Court: Judge Can't Ignore the Supreme Court to Keep Patent Cases in TX
https://www.techdirt.com/articles/20170921/17090738264/appeals-court-tells-patent-trolls-favorite-judge-he-cant-just-ignore-supreme-court-to-keep-patent-cases-texas.shtml
65 comments
> Not a lawyer and haven't read that many rulings, but this one looked pretty normal and not that "sarcasm-oozing" to me.
Yeah, so, it's hard to detect variation from the norm if you have no basis for understanding where the baseline and range of normal variation is.
While not a lawyer, I've studied law and read lots of court rulings, and the excerpt provided is pretty high on the list of the most condescending rejections of a lower court decision I've seen.
> Sometimes they need to use a "common meaning" of a term rather than a legal one, and so they might cite a dictionary.
Citing, for the same common term, both a 1911 general-use dictionary and the 1891 first edition of Black's Law (other than for a time-specific meaning of a term in a turn-of-the-century law), on top on the “this is a noun, this is an adjective that modifies the noun” bit, is pretty much saying “English...it's a thing you might want to look into.”
Yeah, so, it's hard to detect variation from the norm if you have no basis for understanding where the baseline and range of normal variation is.
While not a lawyer, I've studied law and read lots of court rulings, and the excerpt provided is pretty high on the list of the most condescending rejections of a lower court decision I've seen.
> Sometimes they need to use a "common meaning" of a term rather than a legal one, and so they might cite a dictionary.
Citing, for the same common term, both a 1911 general-use dictionary and the 1891 first edition of Black's Law (other than for a time-specific meaning of a term in a turn-of-the-century law), on top on the “this is a noun, this is an adjective that modifies the noun” bit, is pretty much saying “English...it's a thing you might want to look into.”
> The noun in this phrase is “place,” and “regular” and “established” are adjectives modifying the noun “place.”
IANAL, but I was one at one time. For what it's worth, I got a nice chuckle out of that sentence. All things considered, it's pretty condescending to be giving a district court judge a grammar lesson. But he needs one, so good for them!
IANAL, but I was one at one time. For what it's worth, I got a nice chuckle out of that sentence. All things considered, it's pretty condescending to be giving a district court judge a grammar lesson. But he needs one, so good for them!
The fact that the ruling goes out of its way to explain the meaning of the phrase "defendant [...] has a regular and established place of business" by explaining that "regular" and "established" are adjectives which modify the noun "place", and that defendant is a word which here means "defendant" is very sarcastic language. The reasoning isn't elaborate, it's just saying "if you don't know how to interpret this phrase, let me say it again slower for you".
Not a lawyer either, but this is markedly different than most appeal rulings I've read. It's pretty buttoned-up, but still acrid for this sort of writing.
The main thing isn't the tone, it's the focus. Overturning a lower court usually means talking about how a decision misapplied a test, failed to conform to precedent, enforced an unconstitutional law, or otherwise was coherent-but-wrong.
Here, the issue is that there's nothing subtle in the outcome. The ruling only mentions the relevant court decision and the dictionary citations, implying that that's all Gilstrap needed to get this right. It creates a pretty strong sense of "read the rules, idiot". The discussion of "physical is not virtual" seems especially damning, since it goes into enormous detail just to show that a 'place' is in fact a 'place', and not whatever non-corporeal entity Gilstrap wants it to be.
And, of course, it's a bit of a screw-you to Gilstrap's place in precedent. He outlined a four-part test for these suits, which is the sort of thing that becomes widely used and studied. And the appeals court struck down each branch of that test, meaning that the entire thing is now irrelevant.
The main thing isn't the tone, it's the focus. Overturning a lower court usually means talking about how a decision misapplied a test, failed to conform to precedent, enforced an unconstitutional law, or otherwise was coherent-but-wrong.
Here, the issue is that there's nothing subtle in the outcome. The ruling only mentions the relevant court decision and the dictionary citations, implying that that's all Gilstrap needed to get this right. It creates a pretty strong sense of "read the rules, idiot". The discussion of "physical is not virtual" seems especially damning, since it goes into enormous detail just to show that a 'place' is in fact a 'place', and not whatever non-corporeal entity Gilstrap wants it to be.
And, of course, it's a bit of a screw-you to Gilstrap's place in precedent. He outlined a four-part test for these suits, which is the sort of thing that becomes widely used and studied. And the appeals court struck down each branch of that test, meaning that the entire thing is now irrelevant.
Can someone explain to me Judge Gilstrap's motive for these rulings and funneling cases to his district? Does he take kickbacks from the patent holders? Does it force business into his area? Or maybe he is just an asshole?
I believe I read his son is the lawyer representing the patent-holders (it could have been another judge there, though).
In addition to the reason that you stated there is also an amount of power that is conveyed to him by being so involved in the way that he is. It's an entirely bureaucratic way of thinking and what people of even nominal power (say the janitor who controls the supply closet) thrive on. While you can't argue the importance of a judge in a case like this (not a janitor) his importance and good feeling by getting positive feedback from attorneys filing cases which he handles must be quite the drug. To him it must be like being able to decide who gets an academy award or into a good school.
One interesting note: Marshall, TX (pop. 23,000) has become such a hotspot for patent suits that large tech companies have started pouring major charitable donations into it. Samsung in particular has given hundreds of thousands of dollars in scholarships and other gifts to Marshall residents.
Now, I would be hard pressed to describe that as something other than "pre-emptive jury tampering", but since I would also describe patent trolling as a modern protection racket, it's hard for me to really get mad about.
So there is, at least, some financial gain coming to Gilstrap's town in return for this madness.
https://arstechnica.com/tech-policy/2015/02/patent-troll-cla...
Now, I would be hard pressed to describe that as something other than "pre-emptive jury tampering", but since I would also describe patent trolling as a modern protection racket, it's hard for me to really get mad about.
So there is, at least, some financial gain coming to Gilstrap's town in return for this madness.
https://arstechnica.com/tech-policy/2015/02/patent-troll-cla...
$$$.
What does a federal judge have to do to be removed?
Be impeached or subject to other means of removal, if you'll accept this Yale Law Review article:
The Constitution authorizes the impeachment of federal judges, but it nowhere says that they can be removed only through impeachment. Nor do the Constitution’s relevant provisions easily lend themselves to any such reading.
http://www.yalelawjournal.org/forum/removing-federal-judges-...
The Constitution authorizes the impeachment of federal judges, but it nowhere says that they can be removed only through impeachment. Nor do the Constitution’s relevant provisions easily lend themselves to any such reading.
http://www.yalelawjournal.org/forum/removing-federal-judges-...
Die? (Not meant as a threat!)
A Federal Judge can be a) arrested by FBI; b) impeached by their state legislatures; c) in some states dismissed by a public vote.
Are you sure about this one?
https://en.wikipedia.org/wiki/United_States_federal_judge#Te...
The article above states, a Senate trial is required, or finding of a mental / physical disability.
Is lack of morals a mental disability?
The Senate can impeach federal judges for high crimes and misdemeanors. That power has been exercised extraordinarily rarely. I can think of only one case in my lifetime, where a judge from Mississippi was removed in the 90s IIRC.
I think Congressional oversight of the judiciary has been the very weakest part of the separation of powers doctrine laid out by the founders.
I think Congressional oversight of the judiciary has been the very weakest part of the separation of powers doctrine laid out by the founders.
US greatly lacks that separation in between the executive branch and the judiciary for simple reasons:
1. Top tiers judges are nominated by the executive branch, there are no other way up there.
2. For a high tier judge in US, a promotion is effectively a political promotion
3. US law, as I know, has no provisions for disbarring a judge for bad judgement even if it is plainly going against the what is written in the code. Only gross miscarriage of justice (graft, proven act of conspiracy, and 3 or 4 violations of court procedures) allows for impeachment by congress
All of that makes appointing politically aligned judges too attractive for executive branch officials who want to extend their powers through them
1. Top tiers judges are nominated by the executive branch, there are no other way up there.
2. For a high tier judge in US, a promotion is effectively a political promotion
3. US law, as I know, has no provisions for disbarring a judge for bad judgement even if it is plainly going against the what is written in the code. Only gross miscarriage of justice (graft, proven act of conspiracy, and 3 or 4 violations of court procedures) allows for impeachment by congress
All of that makes appointing politically aligned judges too attractive for executive branch officials who want to extend their powers through them
No, but it seems that it's a prerequisite for a cabinet or agency appointment lately though.
He does seem to deserve an investigation by the FBI. He can't simply like copyright that much.
And none of these things will happen unless you get filmed throwing puppies in a wood chipper or something equally bad.
But only if the wood chipper wasn't yours to begin with (vandalism).
Thanks, we've updated the link from https://boingboing.net/2017/09/26/judge-rodney-gilstrap-2.ht..., which points to this.
This should be the real article link.
you're going to call boingboing blogspam, really?
I agree, because after looking at both, I don't see how boingboing added any value here.
I agree nothing of value was added, but it's a big stretch to call Doctorow's website "blogspam." That connotation has a whole 'nother set of attributes that go along with it.
He only said the article was blogspam, not the website. An otherwise reputable website can still have blogspam articles.
Likewise, it's a big stretch to call boingboing "Doctorow's website".
I noted at the end of 2014 that Boing-Boing had stopped having much value. Brief summary: unsigned advertorials in the voice of the BB staff; page view splitting to max ad revenue -- often with no more than 1-2 sentences on the last page; pushing podcasts without text equivalents; repeat entries (at the time they didn't have any decent queue management, don't know if that's changed) and finally: I've got a perfectly good RSS reader, and that entirely replaces BB with a bunch of much higher quality sources of signal.
I think I've looked at BB articles three times in the intervening years.
I think I've looked at BB articles three times in the intervening years.
As of the big Wells Fargo scam, I filed BB under "actively destroying value". The brief summary they gave for the arbitration issue abandoned the real story (WF tries to force arbitration based on existing contracts) for a completely false clickbait story (WF tries to force arbitration using the forged contracts).
At this point it's really no better than HuffPo's "repackage and publish" pieces.
At this point it's really no better than HuffPo's "repackage and publish" pieces.
> Boing-Boing had stopped having much value.
Yep, I used to check it daily, but now I haven't actively checked it in years.
Yep, I used to check it daily, but now I haven't actively checked it in years.
The quotes from the ruling remind me of having a "please follow your own damn policies" argument with someone one step up from the receptionist.
A cash fine would teach a more effective lesson.
I doubt he cares about the words as much as money.
I doubt he cares about the words as much as money.
You can't fine judges for disagreeing with you, even when they are actually wrong and you are actually right. Think of the precedent that would set.
As infuriating as it can be, the legal sanctity of bench decisions is a really good thing. We'd probably be better off firing judges for sufficiently bad decisions than trying to exact personal consequences.
I don't think I've heard of a judge facing legal action for anything short of outright bribe-taking, and that's probably how it should remain.
I don't think I've heard of a judge facing legal action for anything short of outright bribe-taking, and that's probably how it should remain.
I think this ruling will severely curtail his future income.
He had managed to attract 25% of all patent cases because those bringing the suites were choosing his troll-friendly court.
However, going forward, those trolls will have to go to the court where the defendant has a physical place?
He had managed to attract 25% of all patent cases because those bringing the suites were choosing his troll-friendly court.
However, going forward, those trolls will have to go to the court where the defendant has a physical place?
>I think this ruling will severely curtail his future income.
I don't see any obvious tie in number of cases in his court to his income. I assume it helps the local Sherman economy some, with all the lawyers staying in the rural town, but that's not very direct. Maybe you're suggesting he would get some deferred quid-pro-quo like a job offer or company board spot when he retires?
I don't see any obvious tie in number of cases in his court to his income. I assume it helps the local Sherman economy some, with all the lawyers staying in the rural town, but that's not very direct. Maybe you're suggesting he would get some deferred quid-pro-quo like a job offer or company board spot when he retires?
If I recall correctly, his son is a lawyer in that district who specializes in representing patent trolls.
His son is a lawyer specializing in commercial law. He's based in Dallas. It appears most of his cases were in a different district, but I see at least one case on the Eastern District. The cases appear to be more broad than just patent cases.
https://www.velaw.com/Who-We-Are/Find-a-Lawyer/Gilstrap--Ste...
https://www.velaw.com/Who-We-Are/Find-a-Lawyer/Gilstrap--Ste...
I wonder if this is a complete list of his cases. Given that he's been a laywer for 7 years, I'm inclined to think not, but I can't say I'm familiar enough with the legal world to judge the quality of this source.
It says he was a judicial clerk through 2013. And I assume both he and his father would be aware of the potential issues with optics.
Edit: Optics meaning the appearance of bias, nepotism, etc. I don't dispute the judge is supporting patent trolls. There is, though, no evidence it's for personal financial gain, and I suspect there's been significant digging. It is perhaps just ego driven.
Edit: Optics meaning the appearance of bias, nepotism, etc. I don't dispute the judge is supporting patent trolls. There is, though, no evidence it's for personal financial gain, and I suspect there's been significant digging. It is perhaps just ego driven.
What is "optics"? And I offer these guys very little trust, given that the father is the shadiest and most notorious patent troll player in the country.
The “optics” of a situation are “how it would be perceived in a critical evaluation”, especially in the press. So the optics of having a son bring patent case to his father’s patent-friendly district are very poor.
The main help to the economy appears to be direct charity from Samsung, but I'm not sure that's actually related to Gilstrap's motives. I think he may just be sincere, and bad at his job.
https://arstechnica.com/tech-policy/2015/02/patent-troll-cla...
https://arstechnica.com/tech-policy/2015/02/patent-troll-cla...
> I think this ruling will severely curtail his future income.
Um, no. Under Article III section 1 of the U.S. Constitution, federal judges are appointed for life, and their salary cannot be reduced [0]. In general, judges are prohibited from accepting compensation from parties before them, and indeed are quite restricted in what outside compensation they can accept for anything [1].
[0] https://www.law.cornell.edu/constitution/articleiii
[1] http://www.uscourts.gov/sites/default/files/vol02c-ch10.pdf
Um, no. Under Article III section 1 of the U.S. Constitution, federal judges are appointed for life, and their salary cannot be reduced [0]. In general, judges are prohibited from accepting compensation from parties before them, and indeed are quite restricted in what outside compensation they can accept for anything [1].
[0] https://www.law.cornell.edu/constitution/articleiii
[1] http://www.uscourts.gov/sites/default/files/vol02c-ch10.pdf
Compensation doesn't always come in direct form.
Marshall, Tx has a population of about 25k. Yet, the city continues to get donations from Samsung which has patent cases in the district[0][1]. My own hometown was quite a bit larger than 25k, but I don't ever recall having major corporate sponsors of a wide variety of activities.
While I don't know the thoughts of Samsung or Judge Gilstrap, I imagine he's very popular for bring so much business to town.
[0] - https://www.marshallnewsmessenger.com/news/2012/oct/20/samsu... TVs, MP3 players, athletic sponsor, library, habitat for humanity, boys and girls club, fire department, etc.
[1] - http://www.marshalltexas.net/uploads/pdf/Community_Update_10... Returning attractions include the Samsung ice rink
Marshall, Tx has a population of about 25k. Yet, the city continues to get donations from Samsung which has patent cases in the district[0][1]. My own hometown was quite a bit larger than 25k, but I don't ever recall having major corporate sponsors of a wide variety of activities.
While I don't know the thoughts of Samsung or Judge Gilstrap, I imagine he's very popular for bring so much business to town.
[0] - https://www.marshallnewsmessenger.com/news/2012/oct/20/samsu... TVs, MP3 players, athletic sponsor, library, habitat for humanity, boys and girls club, fire department, etc.
[1] - http://www.marshalltexas.net/uploads/pdf/Community_Update_10... Returning attractions include the Samsung ice rink
It's interesting then what makes Gilstrap so energetic in his efforts to keep those patent-cases coming. Assuming there are no direct monetary payments from patent trolls coming his way, what is is incentive? Does he get "favors" from patent trolls, or does he have a relatives or friends who benefit from his practices? Always follow the money, is what I heard :).
The tradition in the Texas was to have son create and run patent law practices while the judges serve in the court to get around the direct benefit technicality. Then when the judge retires he joins a patent law practice.
https://arstechnica.com/tech-policy/2015/04/east-texas-judge...
https://arstechnica.com/tech-policy/2015/04/east-texas-judge...
Money is far from the only thing that motivates people to do bad stuff. Plus, consider, he may not even think of what he's doing as at all bad.
mtgx(2)
My guess is that companies will start closing any offices there, just so they can't be tried by that court.
For those that are curious, here's the jurisdiction: http://www.txed.uscourts.gov/?q=court-info
A large portion of it is rural, but it does include suburban areas of Dallas like Plano, which is the HDQ for companies like JC Penney, Frito Lay, and Perot Systems. And, of course, your HDQ doesn't need to be there, just any "place of business".
A large portion of it is rural, but it does include suburban areas of Dallas like Plano, which is the HDQ for companies like JC Penney, Frito Lay, and Perot Systems. And, of course, your HDQ doesn't need to be there, just any "place of business".
The major issue for trolls is they prefer to target tech companies that recently received funding. By incorporating and having offices only in patent-antagonistic jurisdictions, they all but chop the head off patent trolls.
That is far from being a scorching lesson, a prompt disbarment would be one.
Offtopic, but have you tried selecting any text in the article on BoingBoing with your mouse? What on earth is that javascript monstrosity from Rune that pops up?
When I see horrible stuff like that I tend to think the website is in a death spiral and desperate for revenue.
When I see horrible stuff like that I tend to think the website is in a death spiral and desperate for revenue.
I tried that out of curiosity and did not have the same experience. I selected some text and when right clicked, got the typical copy/search/etc... dialog. I'm using Chrome on Linux with Ghostery and uBlock among other plugins. Perhaps one of those interferes with what you experienced.
I would imagine so. The website of the plugin maker is at:
https://www.secretrune.com/
https://www.secretrune.com/
Given the amount of damage this judge has done, I'd say he should be in jail for abuse of process. But I'm sure he's sufficiently covered his back.
Texas will want to get rid him (yes, difficult) now that the Eastern District Court of Texas racket is up. It’s a competitive disadvantage now.
He isn't affiliated with Texas or connected with its government in any way. He's part of the federal court system; he just happens to be physically located in Texas.
I am well aware of the construction of our Federal system with its separation of powers, its system of states and their boundaries. I'm also aware of the jurisdictional boundary of the Eastern District which you can view here:
https://2.bp.blogspot.com/-cjdbkic2WPI/WDSjakCZpNI/AAAAAAAAd...
Yeah, this is a Texas thing and in particular it's an East Texas thing. Texans enabled, participated and benefited from this and if you need that spelled out, I'll call it corruption.
Of course Federal judges are Federal and moreover they get life tenure. So this guy isn't going away. But his patent mud farm is.
https://2.bp.blogspot.com/-cjdbkic2WPI/WDSjakCZpNI/AAAAAAAAd...
Yeah, this is a Texas thing and in particular it's an East Texas thing. Texans enabled, participated and benefited from this and if you need that spelled out, I'll call it corruption.
Of course Federal judges are Federal and moreover they get life tenure. So this guy isn't going away. But his patent mud farm is.
The inverse of Poe’s law, or just a typical article trying to churn up some rageviews?