The courtroom of U.S. District Judge Alan Albright ended its maiden trial in Waco this week, not with a bang, but with a take-nothing verdict in a $41 million patent infringement case.
No big numbers to note. No roiling controversy to ponder. Only a one-day delay from a citywide power outage, and the widely shared observation that the judge is pretty good at what he does.
The closely watched battle between a Florida patent holder and the streaming company Roku, Inc., ended with a victory for Roku. But the main take-away from those who observed the proceedings can be summed up with a polite perversion of Shakespeare’s Polonius: Brevity is the soul of a trial in Judge Albright’s courtroom…
The infringement claim was filed by MV3 Partners, a limited liability company formed by Jared Abbruzzese, an inventor in Palm Beach Gardens, Florida. Abbruzzese and his partners — Wayne Barr and David Marshack — sued Roku for what he claimed was their infringing use of Patent No. 8,863,223, a device that allows various streaming signals to be mirrored from small devices like cell phones to larger screens on computer monitors and TVs.
The case attracted more attention than usual in the Age of Coronavirus, not because of the abundant caution taken to ease the anxieties of participants, but because the court holds the possibility of becoming a new Texas juggernaut in the specialized world of patent litigation. In fact, it may already be.
In the first half of 2020, according to Androvett Legal Media, there were 747 patent cases filed in Texas, and 454 — 6 in every 10 — were filed in the Western District. That was also more than twice the number (218) filed in the Eastern District of Texas, the venue of choice for IP litigation in Texas and much of the country during the first 17 years of the century.
When Judge Albright took the bench in the Waco Division in 2018, it was with the express purpose of creating a specialized court built to rival other IP venues. But while the numbers show his court has managed to attract significant numbers of cases, he hadn’t yet presided over a jury trial — so the jury was still out, so to speak, on what kind of experience that might be.
For instance, what differences in demography — education, income and occupational —might make a difference in the jury pools of, say, East Texas and Waco? Those differences could dictate new
Enter Danielle Williams and Mike Tomasulo of Winston & Strawn. The two IP litigators are part of a Winston & Strawn blogging project called WacoWatch, a firm-website devoted exclusively to Judge Albright and his Waco Division court. The blog was the brain-child of Kathi Vidal, managing partner of Winston’s Silicon Valley office, and when the Roku case presented itself as the first jury trial, she urged the two to travel to Texas — Williams from North Carolina, Tomasulo from California — to watch and report for the blog.
Covering the case from filings to preliminaries to voir dire and beyond, the two shared their observations via blog and a daily podcast with associate DaWanna McCray, who hosted it from Chicago. It is fair to say that, as litigators, they liked what they saw. Here, in no particular order, is what they noticed:
Voir dire: There actually was one. Unlike some federal courts, Judge Albright allows the lawyers to ask questions of potential jurors.
Brevity: Judge Albright urges witnesses to be pithy. “It’s like the Mark Twain observation: ‘If I had more time, I’d have written a shorter letter.’ He offered the lawyers 45 minutes for closing arguments but suggested 30 would be more advisable. I both were glad they did,” said Tomasulo.
Enthusiasm: “He loves trials,” said Tomasulo. “He loves patent trials because they involve really good lawyers who come prepared.”
“I was impressed with how well the judge knew the case,” Williams said. “By the time it came to trial he knew all the issues, what lines the lawyers were pursuing. It was clear that he was paying attention.”
Brevity, again: “He likes witnesses to be brief and lawyers to ask questions on cross-examination that can be answered ‘Yes’ or ‘No.’ When they try to talk around a question,” said Tomasulo, “he’ll prod then to answer directly — gently, at first. He tells them that their own lawyer can clean up their answer on re-direct.”
Be careful what you wish for: At one point the Roku had complained about the venue, suggesting that Northern California would have been more convenient for witnesses. When the defendant’s first witness, an executive based in Austin, testified about the importance of Texas to the streaming giant, Albright wondered aloud whether he should be rereading the company’s request to move the case west.
“If you’re going to ask for a change in venue, be careful expressing your reasons,” Tomasulo said. “Make sure you don’t put something in the brief that you’ll later come to regret.”
COVID-19: Judge Albright made sure all the proper safety conventions were followed, and the trial participants — the lawyers, the jurors, the witnesses — seemed both comfortable and grateful. Jurors remained masked during the entire trial. One major effect: there were no sidebar conversations. The business of the court remained before the court — and the jury.
Time-management: When the trial lost a day because of a power outage in downtown Waco, Judge Albright helped the two sides find ways to manage their case. Both sides, for instance, agreed to shorter closing arguments with the plaintiffs reserving 10 minutes of rebuttal from their 30-minute closing.
“While it was Judge Albright’s management, I think both sides saw the benefit of his time guidelines,” Tomasulo said.
Williams and Tomasulo said they plan to continue the WacoWatch blog for the foreseeable future. Besides Vidal, Tomasulo and Williams, contributors include partner Evan Lewis and associate William Logan, both from Houston.