This morning, some of the nation’s top intellectual property practitioners from both coasts are filing into Judge Alan Albright’s courtroom in the Waco federal courthouse to face off against each other in what will easily become one the most closely-watched trials this year.
Though he’s only been on the federal bench since 2018, Judge Albright has quickly made Waco the most heavily-trafficked venue for patent cases in 2020. But because of the pandemic, Monday’s trial between private equity-backed VLSI and Intel is only his second patent jury trial.
Because of this, IP practitioners from near and far are expected to follow this trial to collect as many data points as possible for how Judge Albright handles things at trial — particularly as more patent cases are expected to go to trial in Judge Albright’s court. IP experts say they are also following the case because of the billions said to be at stake, the quality of lawyers involved on both sides of the “v” (Irell & Manella for VLSI and Wilmer Cutler for Intel) and the opportunity to collect more intel on the patterns and behaviors of the pandemic-era jury in a high stakes trial. It is also believed to be the first trial that the public can tune into telephonically, which is another reason it will be so heavily-watched.
The first patent trial in Albright’s court, which took place last October between MV3 Partners and Roku, resulted in a complete defense verdict for Roku. The IP community is anxious to see if this pattern will follow in this trial or if whether the Western District will follow the footsteps of the Eastern District’s reputation as a friendly venue to plaintiffs in patent infringement cases.
While selection currently underway, The Texas Lawbook asked a handful of IP experts, some of whom are traveling to Waco, to elaborate on why this trial is so important. Below is their feedback.
Michael C. Smith, Siebman Forrest: “Because so many patent cases are now filed there, it is of great interest how the judge conducts trials and how Waco juries view patent disputes. Every judge handles their courtroom differently, and we need to know which arguments and tactics they allow.”
Smith operates EDTexweblog.com, a blog that focuses on patent litigation in the Eastern District of Texas and elsewhere across the state.
Danielle Williams, Winston & Strawn: “The trial is significant for at least two reasons: Judge Albright is the busiest patent judge in the country and this is just his second patent trial. We got a taste of what patent trials would look like before Judge Albright in the MV3 Partners LLC v. Roku, Inc. trial, and we expect we will learn even more this time. Just as importantly, the stakes are significant. Fortress Investment Group-backed VLSI Technology is said to be seeking multiple billions in damages over semiconductor-related patents originally developed by Freescale Semiconductor and SigmaTel. Both sides are well-funded and their dispute spans multiple cases and jurisdictions, including an antitrust suit brought by Intel. Fortress has invested significantly in its pursuit of Intel, and this case is the first showdown.”
Wasif Qureshi, Jackson Walker: “The VLSI/Intel Waco trial will be closely watched for a number of reasons. VLSI and its affiliate Fortress Investment Group are embroiled in patent and antitrust disputes with Intel in courts around the U.S. and abroad. VLSI’s damages claims against Intel amount well into the many billions of dollars.
“Perhaps more so though than the VLSI/Intel war itself, the trial will be closely eyed for what it may mean for future patent cases in Waco. It will be interesting to see how the various Covid-19 safety precautions Judge Albright has put into place will play out. If the trial is fairly seamless with all the safeguards, we can expect a faster clip of trials in Waco even as the pandemic continues. Judge Albright has only held one patent jury trial before this, a few months ago where Roku obtained a defense verdict of non-infringement. We will be looking to see if any trend lines emerge from the verdict in the VLSI/Intel trial as to how Waco juries see patent issues.
“Some of the thought behind plaintiffs filing patent cases in Waco was that Waco juries may be more like Eastern District of Texas juries, which have awarded significant damages in many patent cases. If VLSI does prevail, the amount of damages awarded by the jury in relation to the billions VLSI is seeking will become a consideration for Waco patent litigants going forward. A sizable verdict may further accelerate the flurry of patents cases being filed in Waco. Also, I’m pretty sure that this will be the first patent trial ever that anyone in the world can call in and listen to (per Judge Albright’s Feb. 10 order in the case).”
Jamil Alibhai, Munsch Hardt: “The VLSI v. Intel trial involves a face-off between Morgan Chu and William Lee, considered two of the top patent litigators in the United States. And the stakes are high for both sides — this case is just one of multiple cases between the parties, and VLSI is reportedly seeking billions of dollars in damages.
“Because this is only Judge Albright’s second patent trial, the trial will serve as another data point for patent lawyers regarding Judge Albright and Waco juries. Judge Albright has many other patent cases scheduled for trial this year.
“Aside from the consequences for these two parties, the trial is most important because it may serve as the beginning of the resumption of jury trials in 2021 in Texas. Judge Albright has implemented many Covid-19 safety protocols, and lawyers and judges are determining whether courts can safely resume jury trials. If so, other federal courts in Texas will move forward with civil and criminal trials in the coming months.”
Roger Fulghum, Baker Botts: “I think it has so much interest because, for one, it’s been in the legal press a lot because of the transfer issues and mandamus petitions. More importantly, it’s Judge Albright’s second patent trial and is going to serve as a useful set of data points for Judge Albright’s trial management practices. People will want to see how he handles the jury, how he handles objections, how he handles demonstratives, trial technology, experts and the jury charge. It’s a meaningful case with very experienced counsel and meaningful damages as well.
“It’s the second jury trial in what’s become the busiest patent court in the nation. Judge Albright has been receptive to patent cases, and is well-known throughout the legal community. He was a well-known patent litigator before becoming a judge.”
Erick Robinson, Porter Hedges: “The VLSI v. Intel trial is highly anticipated because it is only the second trial presided over by Judge Albright since he came back to the bench. The first, MV3 Partners v. Roku, resulted in a defense verdict. However, for several reasons, I did not find that trial to be representative, including that the Roku case regarded only a single patent. For complex technologies, sometimes a jury may not understand the arguments fully. With a single patent, they may tend to side with the defendant because they see it as slightly less likely that one patent is infringed. However, if there are multiple patents in play, then I have seen jurors in mock trials shift to thinking that the more patents there are, the more likely that at least one is infringed. The Intel trial has three patents-in-suit. Also, the plaintiff is represented by a top law firm with significant trial experience. I suspect this will be a more even match.
“Everyone is waiting to see how “plaintiff-friendly” Waco is. I believe it is somewhere in between Marshall (in the EDTX) and Austin (in the WDTX). I fervently believe based on more than 20 years of trying patent cases throughout Texas that jurors get it right most of the time. In Waco, jurors generally have more trust in the government and authority than in Marshall, but there is also a strong sense of fairness and justice.
“Observers (including me) are looking to learn how Judge Albright handles trials. For instance, from the Roku trial we learned that the judge wants witnesses to answer directly and not dance around. For example, if someone is asked a yes or no question, that was how he wanted them to respond. Many years ago there was a new judge that was said to be very plaintiff-friendly. Up to trial, I don’t think that he was plaintiff-friendly, but he was very fair. However, when it came to trial, his personal views about non-practicing entities came out, and it resulted in a defense verdict. Few patentees thereafter filed in his court. Although I do not see this happening with Judge Albright, it is important to see with one’s own eyes and hear with one’s own ears. Judge Albright has been back on the bench for a short time and is still learning. He did an amazing job with the Roku trial, and I expect the same in this trial. But if watching and listening gives me even one useful tidbit for my clients’ trials, then it was well worth the trip to Waco.”
Robinson runs The Waco Patent Blog that reports on patent litigation in WDTX.
Bill Munck, Munck Wilson Mandala: “This is Judge Albright’s second patent litigation trial as a judge. The legal community is watching closely to glean insights into his approach, so that we can advise our clients on what to expect. This could also be his first trial with a verdict in favor of a patent infringement plaintiff, which may lead to even more filings in the Western District of Texas.
“It will be interesting to see how the court handles issues such as positive Covid-19 test results without facing major delays and how that affects the outcome of this trial. In addition, we will be watching the trial to see which invalidity challenges Intel focuses on, and whether and how it prioritizes those arguments over non-infringement and damages arguments.
“We do not plan to send any parties to this trial in view of Covid-19 protocols; however, my law partner, Mike Wilson, is participating in a CLE webinar Friday, Feb. 26 with Judge Albright. He will be part of a panel that looks at patent litigation trends in Texas.”
(Editor’s Note: The Texas Lawbook is putting on the above mentioned CLE this Friday from noon to 1:15 p.m. The program also features Caldwell Cassady & Curry’s Brad Caldwell and Kelly Chen, managing counsel of litigation at Toyota North America. Registration is $50 and you can sign up here.)
Editor’s Note: Responses may have been edited for brevity and to comply with Texas Lawbook stylistic guidelines.