There’s no question that U.S. District Judge Alan Albright has made the Western District of Texas the hottest patent infringement venue in the country since his fall 2018 swear-in on the bench.
The $2.175 billion jury verdict that came down Tuesday in his court in the trial between VLSI and Intel is sure to keep Waco a popular venue for plaintiffs in patent infringement cases.
Even as he was in the middle of day five of overseeing VLSI v. Intel, Judge Albright graciously gave The Texas Lawbook and a community of IP lawyers one hour of his time last Friday to sit in the hot seat and answer practitioners’ questions about patterns and trends unfolding in and out of his courtroom.
The discussion came at a pivotal time for patent litigators because Judge Albright revealed that many of the cases that first hit is docket are now phasing into the trial stage. Now that VLSI v. Intel is over, the judge expects numerous more jury trials to fill his docket this year as Covid-19 restrictions for the federal courts continue to loosen, with four already set in April.
Last year, a large portion of Judge Albright’s docket proceedings were Markman hearings — pretrial hearings that help the court pin down the relevant key words used in patent claims.
In addition to Markman hearings, Judge Albright said the other three “big categories” currently filling his schedule are pretrial hearings, trials and general motions.
Judge Albright also revealed his penchant for summary judgment rulings during the webcast.
One of the panel members, Munck Wilson Mandala partner Mike Wilson, pointed out that most patent cases his firm has — whether they’re representing the plaintiff or defendant — involve motions to dismiss under Section 101 for subject matter eligibility. He said about 65% of such motions get granted in central and northern California federal courts, while the rate is “30% or less” in Delaware and Texas federal courts. He asked Judge Albright to offer an explanation behind the discrepancy.
Judge Albright said he wasn’t the best person to provide an “in-depth analysis” because he views Section 101 as a topic to take up on summary judgment.
“I’ve always felt like it would be better at the end of the case rather than early in the case,” he said. “But to make sure it’s understood… we really consider strongly motions for summary judgment. Ya’ll are about to see some summary judgment in some big cases in my court where we’ve granted them at the appropriate time at the end of discovery.
“I’m a big believer in if someone files a motion for summary judgment that it [Section 101] ought to be taken up and be really considered and argued, but I just think that’s the better time to do it,” he added.
Toyota Managing Counsel Kelly Chen, an expert in patent law and the moderator of Friday’s Texas Lawbook webcast, pointed out that Judge Albright has appeared in headlines multiple times recently over motion to transfer venue issues in cases, including the VLSI v. Intel matter.
Chen brought up the elephant in the room and asked Judge Albright about motion to transfer or venue trends he’s noticing in his court.
Judge Albright immediately chuckled. He clarified that most of the motion to transfer cases that cross his desk are convenience-based versus venue-based, since — in part, so many technology companies and other businesses now have operations in Austin, Waco and the Western District of Texas. The judge said there is no question that he has jurisdiction over cases “90% or higher of the time.”
Judge Albright said he’s noticed that the post-TC Heartland evolution of motion to transfer arguments in a couple of his cases are currently gravitating toward “first to file” and whether it trumps TC Heartland as well as an issue of pendant jurisdiction to other non-patent claims, such as trade secret claims.
“The question is if you have jurisdiction for the non-patent claims, does that mean I also have jurisdiction for patent litigation even if, but for those claims, they couldn’t’ have filed it here because of TC Heartland?” Judge Albright said of a case that he’s getting ready to rule on.
Panelist Brad Caldwell, a principal at Caldwell Cassady & Curry, shared with the audience lessons learned during a case his firm tried in the Eastern District of Texas at the end of October. While the trial, which resulted in a $502.8 million jury verdict in favor of Caldwell’s client, VirnetX, concluded without incident, a coronavirus outbreak in EDTX Judge Amos Mazzant’s court occurred just a couple weeks later that resulted in a mistrial.
“I imagine there’s a certain amount of luck in it but you want to take the precautions you can, so that’s what we did,” Caldwell said.
Precautions included breaking the team up into smaller teams in individual hotel rooms versus the traditional larger war rooms, isolating local counsel in a different work room “to reduce interaction,” and eating more prepackaged lunches. Caldwell said they also had to make difficult strategic decisions about which lawyers and support staff would be in the courtroom.
U.S. District Judge Robert Schroeder limited the headcount to seven team members per side, and once trial started, it had to be those same seven members. This put Caldwell in a tough predicament of choosing between the team’s paralegal and a senior associate who was vital to arguing the evidentiary disclosure issues that the team develops overnight.
“When we were allocating our spots, pretty much the first person I wrote down was our trial paralegal, but eventually, we had to give up that spot to another member of our team … we actually had to train one of our senior lawyers to learn the much more intricate skillset of a paralegal to fill that role,” Caldwell said.
Caldwell is one of the lawyers among the Texas IP community who immediately warmed up to the idea of Waco becoming the next hot venue for patent infringement once Albright got nominated to become a federal district judge. Caldwell revealed during the webcast that he was involved in one of Judge Albright’s first case management hearings since he filed the case in Waco before Judge Albright was confirmed.
At the hearing, Judge Albright told the parties that when it came time to argue their Markman hearing they could have as much time as they want and argue as many terms as they want. He wondered if the judge had retreated on that promise.
“You don’t get to scold me,” Judge Albright said, laughing. “I still give people as much time as they want.”
The reason that has worked, the judge said, is because of the prep work the court does with the parties beforehand, including giving out preliminary constructions at least the day before the hearing.
“By and large, people know to select the [terms] that they think they can do the most good in the arguments because they know what I’m thinking of doing,” Judge Albright said. “So I’ve only had one Markman hearing that has lasted more than two hours and I’ve never cut anybody off.”