“Why is there such vocal outrage about a patent-friendly judge, but seemingly no similar concern when defendants want to constantly transfer to judges and courts that are actively hostile to patent rights?”
Yesterday, Chief Judge Orlando Garcia of the U.S. District Court for the Western District of Texas issued an order that, in Garcia’s words, will “equitably distribute” new patent cases among 12 district judges. This order is an effort to address “the volume” of new cases assigned to the Waco Division’s Judge Alan Albright. Albright’s court is viewed as patent owner friendly and he has been under fire recently from both the U.S. Court of Appeals for the Federal Circuit (CAFC) and Congress on different fronts for his policies and procedures, which do tend more often than not to give patent owners their day in court.
In November 2021, Senator Thom Tillis (R-NC) sent two letters on the subject of district court patent litigation—one addressed to Drew Hirshfeld, who was then performing the functions and duties of the Director of the U.S. Patent and Trademark Office (USPTO), and another letter co-written with Senator Patrick Leahy (D-VT) addressed to Chief Justice John Roberts of the U.S. Supreme Court. While never mentioned by name, Albright was unmistakably the subject of both letters, which expressed serious concerns about “unrealistic trial dates” and “open solicit[ation]” of patent cases from a single judge in the Waco Division of the Western District of Texas.
Other members of Congress have also expressed criticism, and one witness at a recent Senate IP Subcommittee hearing told senators in an allusion to Albright that, in 2021, roughly 25% of all patent cases were heard by a “single federal district court judge” and that “this extreme concentration of patent cases is troubling for the judiciary. Judges actively encouraging plaintiffs to file in their courtrooms undermines the public perception of fairness in judicial proceedings.”
Where’s the Outrage for Anti-Patent Courts?
It is difficult to listen to politicians, lobbyists and commentators criticize Judge Albright for “unrealistic trial dates”. As if scheduling a trial date during a scheduling conference is some kind of conspiracy. Patent cases, like every other civil matter, overwhelmingly settle. See Patent Litigation in the United States 1980 to 2020. As every experienced litigator knows, there are myriad reasons for a judge to set a trial date, especially a quick or even “unrealistic” trial date. Although the patent dispute system in the United States over the last 15 years has evolved to favor unilateral judicial victory for infringers and capitulation on the part of patent owners, the U.S. legal system is fundamentally structured to facilitate settlement rather than judicial decision. And settlement happens when action is required, and particularly when finality is near. So, it is pure folly to criticize any judge anywhere for setting an early trial date.
As for open solicitation of patent cases, exactly what is the wrong with a former patent litigator speaking to patent bar groups and letting them know that he is willing and available to take patent cases? We all know there are plenty of district court judges that do not want any patent cases. If there is outrage that Judge Albright is “soliciting” patent cases, then to be intellectually honest there must be similar outrage for the numerous judges who do not want any patent cases and make that openly known. Of course, there is no similar outrage. Why? Because this faux outrage is fomented to villainize patent owners, plain and simple.
The CAFC, meanwhile, has cracked down on Albright’s approach to transfer requests over the last year or so, issuing mandamus orders, which are supposed to be rare, left and right to compel the judge to transfer cases out of his court, mostly to the Northern District of California. We have previously noted on IPWatchdog that the CAFC’s reasoning in many of these cases has relied on outdated approaches regarding access to evidence. The question that arises is why is there such vocal outrage about a patent-friendly judge, but seemingly no similar concern when defendants want to constantly transfer to judges and courts that are actively hostile to patent rights?
In His Own Words
For his part, Albright told attendees of IPWatchdog LIVE 2021 that “doing my best at patent cases is in my DNA. I’m a big advocate of the patent system. I’ve tried to give as much predictability as I can.” Albright said his patent rules have always been about ensuring transparency and predictability, and noted they have allowed him to keep timings to under 24 months for jury trials and within eight months for Markman hearings.
Join the Discussion
12 comments so far.
AnonJuly 29, 2022 05:42 pm
Another (?) brother Anon at July 28, 2022 01:04 pm
Your notion of selective jury levels is true across ALL matters of law.
This is the nature of the beast.
Of course, a quasi-related aspect of this is the notion that a plaintiff (generally) has the ability to select his own forum (which raises the issue of forum shopping).
Given that the problem you identify is a truism for ALL areas of law (and not just patent law), how would “Forum Shopping” be rolled into any solution?
Do you think aiming for “intelligent juries only” is permissible by the notion of “jury of their peers?” After all, a person’s peers WOULD vary for EVERY person.
AnonJuly 29, 2022 12:08 pm
I would also add that your continued battle – featuring an ongoing effort to simply have your counterpoints addressed — is one with which I am very much familiar, seeing as I have faced that exact type of battle for over a decade now on various patent blogs.
No matter how many times bogus arguments have been dismantled and penetrating counter points presented, those with opposing desired Ends simply repeat the same stale points and continue to ignore the counter points that NEED BE addressed to engage in an inte11ectually honest manner.
AnonJuly 29, 2022 12:05 pm
While I hear your plea to inject some level of “common sense” (as would be inserted with a jury winnnowing out all of the nonsensical “government speak”), I would tend to think that even IF you had a jury, those with rather large (money’d) Voice$, would still press the (stilted) system for a finding of Judgment as a Matter of Law (JMOL).
concernedJuly 29, 2022 06:07 am
I would LOVE a jury in my appeal, educated or not.
I would LOVE the USPTO to explain to a jury of anyone’s peers why practical application has a code meaning, why the written words in the law really do not mean what the dictionary says but do not ask for alternative definitions because you will not get one, why evidence is irrelevant, why a mental steps rejection is really not mental steps in real life daily application, what was the constitutional crisis for the judicial exceptions, etc. etc.
We would also put the Patent Commissioner on the witness stand and have her tell the jury that no federal judge fully understands the law, as she has expressed, yet the system defaults to reject/invalidate the patent application/granted patent. I thought the patent application/granted patent has the presumption of validity until proven otherwise, yet the process is just the opposite using a very questionable approach that is given many bites at the apple. The Board switched rejection reasons on me.
What would be the over/under on jury collective dumb looks from the above line of questioning?
AnonJuly 28, 2022 01:04 pm
Is it really the court that is patent friendly or is it the jury?
If you get college educated juries in one district and only high school educated juries in another, the outcome can differ of the same case.
It is beyond time that the patent courts be modified to obtain better juries that are educated in the patent matters before them instead of those that do not.
Jerry PadianJuly 27, 2022 11:46 am
Gene/Eileen, once again, you are right on the mark. Great perspective. Thank for being a watchdog for patent holders and innovation.
AnonJuly 27, 2022 11:32 am
Thank you brother Anon – but I will point out that your sentiments are not those of the usual Anon that uses that moniker here.
AnonJuly 27, 2022 05:42 am
I’m assured that the US legal and political system shows no evidence of corruption.
Jeff HardinJuly 27, 2022 03:00 am
This speaks to the need to address the negative effects of TC Heartland, which curbed forum shopping, but when doing so, tipped the scales against inventors. Section 1400 of Title 28 needs to be amended to enable inventors to bring patent cases in districts where they conducted their research or development.
For example, see
S.2733 from 114th Congress, which was introduced and stalled when TC Heartland was underway.
Why should an inventor be forced to leave her garage to defend her rights when she is busy innovating and creating the next big thing? Because of TC Heartland, she now must traverse the country and bear the expense and risk on the infringer’s home turf when she did nothing wrong, even when the infringing products are sold and shipped in her home district.
A limited change to expand venue to include districts where an inventor performed research that led to the patent in the civil action does not enable forum shopping. Rather, it help inventors and incentivizes innovation, while restoring balance–wholly compliant with the congressional power to promote the progress of Useful Arts and Sciences in Article I, Section 8, Clause 8 of the Constitution.
This court order exasperates the issue.
Notice also, that because the randomization applies to cases filed only in the Waco Division, the order thus provides “judge discrimination” against judges in the Waco division. There is no randomization and distribution for cases filed in the San Antonio Division, for example. As a result, judges in non-Waco Divisions of the WDTX District Court will receive more cases than the Waco Division, which will have all of its cases randomized and distributed across the WDTX District.
Pro SayJuly 26, 2022 08:30 pm
How many more arrows in the back of innovation can America take?
The only “stakeholders” who are happy about this development are China and Big Tech.
Think about that for a moment: China and Big Tech.
Fact is, the large majority of judges have been secretly behind close doors thrilled to have had Judge Albright take on such a large share of our nation’s hated patent caseload.
The thrill is gone.
David G. Henry, Sr.July 26, 2022 01:53 pm
Well said. The patent world has taken a hit today. In fact, even those who oppose patents did so. Why? Every rule/standing order that Judge Albright adopted, and that those of us fortunate enough to be involved in Judge Albright’s “working group” ever discussed and helped tweak, was designed for the fair, efficient and predictable handling of patent cases, all based on more collective experience (including Judge himself) than you can find most anywhere in the country. Those seeking to enforce patents, and even those who would resist those efforts all lost the predictable ability to access (in a wholly proper venue by statute, rule and Supreme Court precedent) expertise that is similarly available in but a very few courts in the land.
AnonJuly 26, 2022 01:29 pm
The fact that a question has to be asked is the answer itself.
Not to sound too “conspiracy theory,” but those in control are those who do not want strong patent rights.
Nonetheless, as I have studied and lived innovation – it is an honor to continue to fight for strong innovation protection.