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Marshall patent venue to be profiled by BBC World News

By Robin Y. Richardson
March 17, 2017 at 4 a.m.

Stormy Nickerson, right, director of the Marshall Chamber of Commerce, chats Wednesday with Anthony Zurcher, North America reporter for BBC World News, for a profile on Marshall's reputation as the top patent litigation venue in the nation.

Marshall's rising reputation as the most popular patent litigation venue in the nation is now garnering worldwide attention with the latest visit from global news source, BBC World News.

"It's been 20 years now that this has become a key patent hub," said Anthony Zurcher, North America reporter for BBC World News, which provides world and U.K. news coverage. "You talk about global business. This is something that has a lasting impact on how businesses are run and how they operate.

"It's a neat little claim to fame," he said.

Zurcher visited Marshall Wednesday to learn more about the small East Texas town as it relates to its renowned reputation as the patent litigation capital of the country.

His visit comes on the heels of NBC's the "Today" Show's visit, which occurred a couple of weeks ago, also profiling Marshall as a patent venue. Zurcher, who is originally from Austin, but based in Washington, D.C. (BBC's largest bureau outside of England), also considered it a great story of interest, especially in light of a pending U.S. Supreme Court decision regarding patent venue reform.

"There's a Supreme Court case right now that could change some of the venue rules," he said.

In the case, the Supreme Court will determine where patent cases can be filed under the patent venue statute. According to Law 360, the decision will affect all federal districts across the nation, including the Eastern District of Texas-Marshall Division, by determining whether companies - large and small - can seek redress for the infringement of their patents in their home districts, or whether they must file suit in the infringers' home districts.

While the oral arguments are scheduled for March 27, Zurcher figured it would be of interest to give BBC's audience a glimpse of Marshall, which has especially become a hot topic in the patent venue issue.

"I'm from Austin. I grew up in Texas. I mostly cover politics, so I was covering the presidential campaigns over the last year-and-a-half. And I was down in Austin covering 'South by Southwest' (conference and film festival) where (former Vice President) Joe Biden was speaking on Sunday," Zurcher said. "I sometimes have a chance to pitch other type of feature stories and ideas to my editor that might have an appeal to a British audience, a global audience and also a domestic audience to people who are kind of US. readers who like that kind of international perspective."

Since he's a Texas native, Marshall drew his attention.

"If it's something that involves Texas my ears perk up a little bit because I'm always interested in telling Texas stories to a global audience," Zurcher said. "Then I saw this Supreme Court case where there were things that could be changed and that gave me a hook to hang the article on."

Since he was already in Austin for work, he figured it would be a good time to fly to Dallas and drive to Marshall to see firsthand what the talk was about.

"(I figured) I'll drive the two and a half hours from Dallas to go to Marshall and see the town and talk to the locals and the kind of little economy that has built up around it and tell that story because I think a lot of our readers - our international readers, in particular - would be amazed to think that these high profile patent cases that affect billions of dollars worth of business and involve names that are an everyday part of their life, that those cases are decided in a little town just on the East Texas/Louisiana border and that they're decided by people who are average citizens, living in small town East Texas life," said Zurcher. "So the idea (is) that these highfalutin corporate lawyers fly in from the big cities to try their cases in front of small town folk and that that makes a difference. And it's fascinating.

"I don't think a European, British person would be able to initially wrap their head around that idea because they don't have the same tradition of jury trials in Europe as we do here (in the U.S.) so it is a uniquely American kind of situation and it's a fascinating story," he said.

On Wednesday, Zurcher took a guided tour of the Harrison County Historical Museum with Stormy Nickerson, director of the Marshall Chamber of Commerce. He also visited with Michael Smith, a veteran patent litigator with Siebman, Burg, Phillips & Smith in Marshall and creator of the subscription-based Eastern District of Texas patent blog, edtexweblog.com. Zurcher also planned to visit some local restaurants to talk with proprietors.

Zurcher's story will be posted on the BBC News website, after the March 27 oral arguments before the Supreme Court and before the final decision, slated for June. Marshall's profile will be one of BBC's U.S.-featured stories.

A deeper look

Smith, who is also a respected patent statistician, said he was honored to be interviewed as an expert on the topic to especially make sure that the news source had the correct facts when it comes to the Eastern District of Texas' operation.

"It's not always good to have people come in and ask to interview you like that, though, because sometimes there's an ulterior motive," he said. "Sometimes they're looking to make us look bad and they already have a story in mind that they want to tell. It's not a lot of fun because you realize you're just being used to build a story that you know is not true."

Smith said that hasn't been the case historically, but it has been lately when it comes to the nationwide attention the Eastern District of Texas, particularly Marshall's forum, has been getting.

"I've been talking to reporters about this for about 12 years now, and used to be they were really interested in what was going on, but more recently I've seen a pattern of news sources coming in with a pre-conceived notion that I recognize as having come from PR (public relation) firms that are working to try to curb the Eastern District's involvement in patent litigation," said Smith. "And I know when I'm talking to those particular reporters I may be talking to someone who has already made their mind up about what is going on."

Smith said he believes that Texas Attorney General Ken Paxton's amicus brief that he filed in the U.S. Supreme Court in support of patent venue reform has played a role in generating such publicity. In the brief, Paxton particularly focuses on the Eastern District of Texas, alleging its judges are hostile to summary judgment rulings, its patent litigation rules are too tough and that its juries are too friendly to plaintiffs by awarding infringement damages in excess of $38 million above the national average, according to Texas Lawyer.

"There's a concerted push to try to persuade the U.S. Supreme Court to eliminate cases from being filed in the Eastern District of Texas, and I think that message is going out to a lot of different press organizations in order to try to solicit support for their viewpoint," Smith said.

"Not that there's anything wrong with that," he said. "There are people on the other side that are trying to get across the point about how fair the district is to parties that are before it and how the facts that are being passed around about the district are not correct. And that is one thing I like to do when I'm talking to people about this, is correct them on the information they're given because I know they're being given information that is out of date and incorrect."

Statistics show

The lawyer said the truth of the matter is the Eastern District of Texas has developed, over the last 25 years, a lot of expertise in handling complex intellectual property cases, and the court has always had a clear understanding of the role juries play in the civil justice system under the Seventh Amendment.

"There are some places in the country where the jury's role in our system is not as well respected, and parties who come from those parts of the country have a pretty strong resentment at having to face being taken In front of a jury if they're accused of having taken someone's property," Smith said. "So there's a well coordinated effort to attack and defame the Eastern District of Texas because, here, everybody gets a fair trial."

The notion that the lawsuits are filed here because juries are perceived to be "plaintiff-friendly," isn't the case, he said.

"Our plaintiffs don't have as good a win rate trial in the Eastern District of Texas as they do nationally. They don't win more money than they do other places," he said.

Smith represents both plaintiffs and defendants in patent cases.

"I see both sides of what's going on," he said.

"We have a lot of people, policymakers in Washington, as well as reporters and other lawyers and parties, (who) want to know 'What are the facts about the Eastern District?' because they're getting numbers from one side and I think it's important that they get the current information and the correct information," he said.

Smith said the unique aspect of the Eastern District of Texas is the expertise of the judges.

"In complex highly technical cases, you don't want judges that don't have experience and are intimidated by the subject matter," he said. "We're very fortunate that our judges have a great deal of experience and you get better outcomes when you're in front of more experienced (judges). You (also) get less expensive outcomes than you do in a lot of other places in the country; and I'm very proud of that.

"I tell my clients - whether they are plaintiffs or defendants - this is the place to get your case heard," he said.

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