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`https://www.iam-media.com/law-policy/albright-the-last-thing-anyone-should-think-about-venue-it-plaintiff-friendly[7/24/2020 4:17:41 PM]
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`to have a jury trial.
`Constitution. I am not taking away anyone's right to go to the PTAB, but I think people ought
`assert their patent. I mean, patents are in the Constitution, the right to a jury trial is in the
`JA: You know, I have done that because I think that people have a constitutional right to
`
`cases pending a PTAB decision – why is that?
`RL: You’re one of the judges who hears a lot of patent cases who has tended not to stay
`
`from and picks his favourite Supreme Court argument.
`and 101. He also reveals where his penchant for listening to audio recordings of briefs came
`views on some of the thorniest issues affecting the US patent system, including the PTAB
`busiest patent judges. Today we publish Part Two of the interview. In this, Albright offers his
`less than two years on the Western District of Texas bench, has become one of the US’s
`Yesterday we ran the first part of our exclusive interview with Judge Alan D. Albright who, in
`
`Albright
`WDTX is that it is patent plaintiff friendly, says
`The last thing anyone should think about
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`2020
`7 Apr
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`The last thing anyone should think about WDTX is that it is patent plaintiff friendly, says Albright | IAM
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`1
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`HUAWEI 2003
`CELLCO V. HUAWEI
`IPR2020-01117
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`https://www.iam-media.com/law-policy/albright-the-last-thing-anyone-should-think-about-venue-it-plaintiff-friendly[7/24/2020 4:17:41 PM]
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`the one that had to do with whether or not states should be able to charge taxes on internet
`Oh boy! I'll tell you, for sure, one of the most amazing ones was from 2018, I believe. It was
`
`patent case or anything else?
`Is there any Supreme Court case that you particularly recommend to listen to, be it a
`
`more familiar with the case by doing it that way
`also, the next day, it is like I have had a double scoop of the learning. And I just felt like I am
`audio version on the drive home, number one, it makes the drive home more pleasant, but
`audio version of the brief, I would have read the brief already but then, if I listened to the
`home to Austin on Thursday before a Markman on Friday, I have found that if I have an
`I also commute once a week between Austin and Waco and so, if I am commuting back
`
`learn pretty well that way.
`2016, I have listened to every Supreme Court argument that they have. And I found that I
`right to vote," and know what it was. And so, I found that I got hooked and literally, since
`everybody, I would at least be able to say, "The 19th amendment had to do with a women's
`amendment in some way, and so if they asked me a question on the spot in front of
`the leading Supreme Court audio arguments that had to do with that Constitutional
`So, what I did was for each Constitutional amendment, I went and listened to two or three of
`
`ought to know a little about all of them.
`Amendment?" Given my nature, I probably would say: "It's my favourite." But I thought I
`And so, I was afraid someone would say to me: "How do you feel about the 19th
`about a Pullman abstention?" Well, no lawyer has dealt with Pullman abstentions recently.
`lawyer in there and they would say, what about this legal issue such as "what do you think
`Committee can ask you some tough questions. You know, occasionally, they would get a
`the steps you go through is you sit in front of the Senate Judiciary Committee, and the
`So, what happened is this: when I was going through the process to become a judge, one of
`
`well as hard copies. Are you a big audiobook fan or a radio fan? Why audio in particular?
`One of the things you are becoming known for is liking your briefs in audio file format as
`
`they are provided with the right evidence. So, I have great faith in the juries on every issue.
`I think juries are very wise and I think we can count on them to make the right decisions if
`I don't have any problem with the idea of the PTAB handling validity issues, but I will say this:
`
`at the PTAB?
`Would you rather that more questions of validity were handled in district court rather than
`
`The last thing anyone should think about WDTX is that it is patent plaintiff friendly, says Albright | IAM
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`https://www.iam-media.com/law-policy/albright-the-last-thing-anyone-should-think-about-venue-it-plaintiff-friendly[7/24/2020 4:17:41 PM]
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`change is broadcast to everyone that is on the email list.
`dealing with that is to pop it over to the committee and if we make a change, then the
`comes up and I am, like, oh wow, that didn't work as well as I was hoping it would, my way of
`that but, frankly, I continue to figure out ways of slightly improving this or that. If something
`or be sued in my court. And you asked was I going to keep the committee intact? Not only
`interest is involved to make sure that whatever I do is fair to everybody that could either sue
`between big firms and little firms but everything I do, I run by them. Every conceivable
`type of patent litigant would be represented. I don't know what the breakdown is anymore
`asking people to be on it, I went crazy trying to make absolutely sure that every conceivable
`Again, the way I put together the [procedures] committee in the beginning, when I was
`
`scrupulously fair.
`sides of the docket. I want every party that comes out of my court to feel like I was
`cases and handled a fair number of patent trials to verdict - but also handled them on both
`going to get from my court is someone who had 20 years of experience handling patent
`ever given a talk to anybody, I have tried to stress that what I am hoping the people are
`I thought that was the worst possible thing that could happen. So, every single time I have
`
`get out of it.
`in such a way that every defendant who got sued in my court would file a motion to try and
`wanting to get a lot of good quality patent cases to get a reputation of being plaintiff friendly
`lot of reasons to try and transfer cases, and I never saw that it was very beneficial to me in
`generically don't like that idea but, you know, we are in an era when defendants can have a
`anyone should think about this venue is that it is plaintiff friendly. Not only because I just
`started talking about this, I have tried to make it as clear as possible that the last thing
`I am glad you asked me that. In every single talk I have ever given since the first time I
`
`reputation as being plaintiff friendly. Would you worry if you were to be seen in that way?
`You are probably aware from your days as a trial attorney that some districts get a
`
`my two favourites.
`one of those that is available on tape. And he and [Gibson Dunn’s] Ted Olson are probably
`Ellis named Paul Clement who has now done 100 arguments and I have listened to every
`the other guy can win. That one is a pretty amazing case. And there is a lawyer at Kirkland &
`lawyer's arguments, you are going to think that's absolutely right, there is no possible way
`sales [South Dakota v Wayfair]. I guarantee you, if you listen to that, at the end of each
`
`The last thing anyone should think about WDTX is that it is patent plaintiff friendly, says Albright | IAM
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`of getting ready for trial.
`right now and you can tell in X number of months about where the case should be in terms
`my court, would also be a good thing. You know, I could take any garden-variety case I have
`about every phase of what is going to happen between filing and the trial, which you get in
`in a company that was a defendant, I would think that having almost absolute predictability
`But, obviously, as a plaintiff I think having a trial in under 20 months, is a good thing. If I were
`
`putting form above fairness.
`smaller cases with families of patents and we would set different trial dates. I am not for
`not a normal patent case as it were, right? And so, that kind of case might get broken up into
`would certainly be wide open to any number of discussions about how to proceed. That is
`the way, I make it very clear to everyone that in a case that, for example, has 19 patents I
`prepare for the Markman, it is not like you are going to trial in six months after filing. And, by
`I personally don't think of that as a rocket docket. I mean, people have a full six months to
`I have tried to be realistic. For example, an 18-month to 20-month window from filing to trial,
`
`trying to get cases to trial too quickly, then I guess I'll just have to live with that.
`is attractive for people to file cases in. But if someone wants to criticise a federal judge for
`is something I’d like. And so, I think how quickly I get to trial certainly makes this a place that
`currently could get me to trial in under two years? Yeah, I think if I were a plaintiff, I think that
`Now, I am not naïve, I think if I were an average plaintiff, would I prefer a docket that at least
`
`here.
`ensure that no party would ever feel like they were advantaged or disadvantaged to being
`done in terms of anything with my patent docket has been making every effort I can to
`issue happening but I can tell you that I think, again, that is why every single thing I have ever
`online or all the effort that I have put in. I don't know that I've ever worried about that specific
`I would invite anyone who is interested in that to call me or look at everything I have put
`
`sense? We've got to do something."
`right? Some judge in Western Texas who’s got 800 patent cases? How does this make
`managing your docket, and if it were to continue to grow a senator saying, "How can it be
`Would you be concerned if there were greater scrutiny, for example, of how you were
`universe of patent cases before them and it became a point of policy discussion in DC.
`years ago particularly in regard to some judges in East Texas who had a huge share of the
`and it can lead to a high profile for district judges like yourself. We saw that five or six
`Patent law is big business for a lot of companies in terms of jury awards and settlements
`
`The last thing anyone should think about WDTX is that it is patent plaintiff friendly, says Albright | IAM
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`https://www.iam-media.com/law-policy/albright-the-last-thing-anyone-should-think-about-venue-it-plaintiff-friendly[7/24/2020 4:17:41 PM]
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`of America
`Semiconductors, Telecommunications, University & Research Institutions, North America, United States
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`Services, Chemicals, Computers & Software, Energy and natural resources, Industrials, Internet, Internet
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`richard.lloyd@lbresearch.com
`Author | Editor
`Richard Lloyd
`
`forward. So, that's the most likely first patent trial I think we have.
`one under my belt. We have a trial set in July, that we are pretty certain is going to go
`longer overly optimistic that my May trial will hold with this situation. I would sure like to get
`You know, I've had to reschedule at the parties’ request everything I have had and I am no
`
`You are still to have your first jury trial in a patent case, right?
`
`101 motion until after a Markman in the form of a motion for summary judgment.
`court, we carefully review but the great likelihood in my court is that I won't take up a Section
`Let's just say if there is clarity, I'm still working to find it. Every 101 motion that is filed in my
`
`there is now clarity?
`around 101 and we see the Federal Circuit grappling with it on a regular basis. Do you think
`In patent circles, there is a lot of discussion at the moment about the state of case law
`
`The last thing anyone should think about WDTX is that it is patent plaintiff friendly, says Albright | IAM
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