Epic Games Inc., the developer of Fortnite and other popular video games, won a rare, sweeping dismissal in Waco of a patent-infringement case in which it was the defendant.
U.S. District Judge Alan D. Albright last week tossed a case against Epic Games filed by IngenioShare, a communications-technology company with headquarters in San Jose, California.
Albright is well-known for inviting patent plaintiffs to bring their cases in Waco. But not this time. He rejected IngenioShare’s argument that because some Epic employees in Austin work from home via Zoom, the Western District of Texas was a proper venue for its suit, even though Epic Games has no offices there.
The judge said that was not enough to meet the standard set by the U.S. Supreme Court in 2017: that a patent-infringement claim must be brought in the judicial district where the defendant “resides” or has “a regular and established place of business.”
Epic Games is headquartered in Cary, North Carolina.
In his March 18 dismissal of IngenioShare’s suit, the judge noted that Epic Games doesn’t “own, lease or rent” the homes of its 20 Austin employees – and that one reason they were working from home was precisely because the company has no Austin office.
During the pandemic, thousands of companies have encouraged or required employees to work remotely. But that doesn’t change venue requirements, Albright said.
Epic Games was represented by Jeanne Heffernan and David Dyer from the Austin office of Kirkland & Ellis, as well as Kirkland lawyers in New York and Los Angeles; and by Paige Arnette Amstutz of Scott Douglass & McConnico in Austin.
IngenioShare was represented by Cortney Alexander of Kent & Risley in Alpharetta, Georgia, outside Atlanta.
Alexander did not respond to phone and email messages seeking comment. Kirkland lawyers declined to comment.
The patents in question involve technology that enable gamers in different locations to communicate with one another while playing online.
Epic Games denied that its products violated IngenioShare’s patents. Albright’s dismissal of the case makes the question moot, at least for now; IngenioShare could refile its infringement claim in a different venue.
Before his appointment to the District Court bench in 2018, Albright was a partner in the Austin office of Bracewell, where he specialized in patent litigation.
As a judge, he has famously encouraged patent holders to file their claims in Waco, establishing policies and procedures to move those cases along swiftly – by, for example, relying on a standard of “plain and ordinary meaning” in construing claims, setting early trial dates, and generally rejecting defense motions for summary judgment or for stays pending often-concurrent administrative reviews before the U.S. Patent and Trademark Office.
The widely held view among patent lawyers is that the fast pace imposed by Albright tends to favor plaintiffs. They get to choose where to file suit, then have the burden to establish that the venue is proper.
By the hundreds, they’ve chosen Waco.
The Western District encompasses 68 counties in Central and West Texas, with courts in El Paso, Waco, Midland, Austin, San Antonio, Alpine, Pecos, Del Rio and Fort Hood. In the year before Albright’s appointment, only 2.5 percent of U.S. patent suits were filed in the district. Two years later, it accounted for more than a fifth of all such cases nationwide – with most of them landing in Albright’s Waco courtroom.