Welcome to Skilled in the Art, y'all! I'm Law.com IP reporter Scott Graham, and each item in today's briefing has a connection to the Eastern District of Texas. Yes, despite the effects of TC Heartland, and emerging competition from other Texas judges, ED-Tex still plays an out-sized role in patent litigation. Thanks to an order today from the Federal Circuit, that's not likely to change any time soon. Read on for details. As always you can email me your thoughts and follow me on Twitter.

Judges Jimmie Reyna, left, and Rodney Gilstrap.

Welcome Back to Marshall, Google!

It's now official. Patent owners can still sue Google in the Eastern District of Texas, TC Heartland or no TC Heartland, for the foreseeable future.

And the same might soon be true for every technology company that conducts business virtually through equipment located in the district, if three dissenting Federal Circuit judges are right.

The court declined Tuesday to review en banc a ruling from U.S. District Judge Rodney Gilstrap that much of the tech industry has blasted as an end-around the Supreme Court's TC Heartland decision. Gilstrap ruled that Google servers housed with Internet Service Providers within the district meet the “regular and established place of business” requirement of the U.S. patent venue statutes.

Google had hired Hogan Lovells partner Neal Katyal and rounded up amicus backing from the likes of Intel, Netflix, Salesforce and HP in its push for immediate mandamus review of Seven Networks v. Google. The Federal Circuit turned them away in a 2-1 decision in October.

On Tuesday, Judge Jimmie Reyna expanded on his dissent from the panel decision, and picked up the votes of Judges Pauline Newman and Alan Lourie—four shy of the seven needed to go en banc.

“It takes little imagination to see how the district court's holding in this case could impact companies that, while conducting business, transmit data over a wide variety of equipment” such as cell towers and voice-over-internet protocol routers, Reyna wrote.

The floodgates are already opening, Reyna warned. In the two weeks between the panel decision and Google's petition for rehearing, Google was sued 13 times in ED-Tex, bringing the total to 34. “I count that as trending,” Reyna quipped.

A check of RPX Corp.'s patent litigation database suggests that almost every one of those new suits was filed by the same patent owner: Uniloc 2017, the patent assertion vehicle organized by Fortress Investment Group last spring.

Still, the court's decision to leave Gilstrap's decision alone until after trial will mean a split of authority among district judges for the foreseeable future. As Google argued, even another judge within the Eastern District has taken a different approach to the issue.

Google and Seven Networks had been on the verge of going to trial but announced a settlement in principle two weeks ago, so it might be awhile before this issue is teed up again to CAFC.

Partner Max Ciccarelli led Thompson & Knight's victorious team for Seven Networks before the Federal Circuit.

Easy Come, Easy Go for Samsung

Look for a high-dollar patent dispute and you'll often find Samsung Electronics in the middle of it. But the past week has been a whirlwind even by the electronics giant's standards.

First, Samsung drove a stake through five instant voice messaging patents that Uniloc 2017 (i.e. Fortress Investment Group) has asserted against the likes of Apple, Google, Facebook, Huawei, Samsung and many others in the Eastern District of Texas.

The FANGs have had mixed success knocking out some of the claims, but Samsung ran the table, persuading the PTAB to invalidate all challenged claims—79 by my count—across six IPRs decided Jan. 31. Samsung even won the cancellation of four claims that the PTAB initially had declined to institute, but was then forced to add following the Supreme Court's SAS Institute decision.

Paul Hastings partners Naveen Modi and Joe Palys and associates Phillip Citroen and Michael Wolfe represented Samsung in all six IPRs. Uniloc 2017 was represented by the Etheridge Law Group and Burdick Patents.

As I reported Friday, Ropes & Gray went David Copperfield for Samsung on Jan. 31, making a $21 million patent infringement verdict disappear at the Federal Circuit, along with a $7 million fee award. Those verdicts, too, were from the Eastern District of Texas. Ropes partner Douglas Hallward-Driemeier led the way.

But Samsung hasn't found the golden touch in a suit by the tech transfer arm of KAIST, or the Korea Advanced Institute of Science and Technology.

Irell & Manella and KAIST IP hung a $400 million verdict on Samsung (and on Qualcomm and GlobalFoundries Inc.) last summer for infringing an advancement in semiconductor technology. Professor Jong-Ho Lee had pioneered a double-gate FinFET device and patented it while employed at KAIST.

Lee had collaborated with Samsung during the early 2000s. With new counsel from Quinn Emanuel Urquhart & Sullivan and Covington & Burling joining its Paul Hastings trial team, Samsung argued post-trial that it believed KAIST and Lee had consented to Samsung's use of the technology, or at least misled the company about their intentions while Samsung invested hundreds of millions in commercializing it.

U.S. District Judge Rodney Gilstrap disagreed on both counts in an order issued Jan. 18 and made public last week. He found no evidence that Lee or KAIST had agreed to assign the patent in exchange for access to Samsung's facilities.

Gilstrap noted that Samsung had held licensing discussions with KAIST IP and its predecessor as early as 2011, before Samsung's big investment in bulk FinFET, but couldn't reach agreement on a royalty rate. “Logic tells the court that parties do not contemplate taking a license to a patent that will not be asserted against them,” Gilstrap wrote.

Samsung is expected to file a motion for a new trial later this month, while KAIST is expected to move for attorneys fees and/or enhanced damages. Partner Jason Sheasby and associate Leah Johannesson have been leading Irell's team for KAIST.

Wiley Rein Partner Takes IP Chops to DOJ

Wiley Rein IP partner Brian Pandya has a new employer. He joined the Justice Department this week as a deputy associate attorney general.

Pandya had spent 13 years at Wiley Rein doing trial and appellate work largely in the area of patents and trade secrets. He is a former co-chair of the ABA's PTAB subcommittee.

And what's the Eastern District of Texas connection, you ask? Pandya clerked during the early 2000s for U.S. District Judge Leonard Davis.

The office of the associate attorney general, headed by Jesse Panuccio, oversees the Antitrust Division, Civil Division, Civil Rights Division, Environment and Natural Resources Division, Tax Division, Office of Justice Programs, Community Oriented Policing Services (COPS), Community Relations Service, Office on Violence Against Women, Office of Information Policy, Executive Office for U.S. Trustees, Foreign Claims Settlement Commission, and the Servicemembers and Veterans Initiative.

That's all from Skilled in the Art today. I'll see you all again on Friday.