Judge Gilstrap Issues Standing Order Governing Subject Matter Eligibility Contentions

For nearly two decades, the Eastern District of Texas has been a hotbed of patent litigation. Even after the Supreme Court’s 2017 TC Heartland decision narrowed a plaintiff’s venue options, the Eastern District of Texas still sees more patent infringement cases than almost any other jurisdiction. It has controlled its docket by, among other things, adopting local patent rules that require early disclosure of Infringement and Invalidity Contentions. For example, Patent Rule 3-3 requires each party opposing a claim of patent infringement to serve Invalidity Contentions detailing the party’s allegations that each challenged claim is invalid under 35 U.S.C. §§ 102, 103 or 112. Last month, Chief Judge Gilstrap augmented this rule with a standing order that requires a party to serve “Eligibility Contentions” if the party intends to allege that any claim is directed to unpatentable subject matter.