Busy IP Judge Albright Holds First Patent Trial: Takeaways (2)
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`IP Law News
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`Busy IP Judge Albright Holds First
`Patent Trial: Takeaways (2)
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`By Matthew Bultman
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`Oct. 14, 2020, 5:00 AM; Updated: Oct. 14, 2020, 5:27 PM
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`• Waco judge's first patent trial comes in Roku case
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`a Anticipation reflects judge's rise to patent prominence
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`None of the patent cases in front of U.S. District Judge Alan Albright had gone to trial. Until now.
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`MV3 Partners LLC and Roku Inc. kicked off a jury trial last week in Albright's courtroom in the U.S. District
`Court for the Western District of Texas in Waco. The case centered on allegations that Roku's streaming
`media players and smart TVs infringe MV3's patented mobile streaming technology.
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`J urors returned a verdict Wednesday that cleared Roku of infringement.
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`The patent trial, Albright's first as a judge, has been the subject of keen interest from intellectual property
`attorneys. They were curious to see what trials will look like in front of the judge who recently took the
`mantle of handling the most patent cases in the U.S.
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`Here are four takeaways from people who were in the courtroom.
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`The Judge Is Active
`From the opening, Albright was prepared.
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`The judge, a former patent litigator at Bracewell LLP, was engaged in the trial, and his courtroom was well-
`run, attorneys said. Albright was well-versed in the technology, and he tuned in to witnesses and their
`testimony.
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`Jennifer Nall, a partner at Baker Botts LLP in Austin, said the judge kept the trial moving and ensured that
`everyone involved could get the most out of the time when the jury was in the courtroom.
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`"He definitely looks like he's having fun up there," Nall said.
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`https://news.bloomberglaw.com/ip-law/busy-ip-judge-albright-holds-first-patent-t... 10/27/2020
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`Busy IP Judge Albright Holds First Patent Trial: Takeaways (2)
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`Albright, who took the bench in 2018, has designed a series of unusual rules for patent cases, outlining basic
`procedures for lawsuits in the run-up to trial. The judge has said the rules are designed to move cases along
`quickly and ensure fairness for both sides.
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`Attorneys said the judge's patent trials will be held in a similar fashion.
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`"Judge Albright seems to be focused on efficient, fair trials so that the jury can get the facts as quickly and
`fairly as possible," Nall said.
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`He Wants Straight Answers
`When Judge Albright asks lawyers a question, he wants a direct answer.
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`"If I ask you a question, whatever you were thinking about or were going to say, answering that question is
`more important at that moment. And answering that question directly," Albright said in a recent interview
`with an Akin Gump Strauss Hauer & Feld LLP attorney.
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`The same is true for witnesses who are answering questions from attorneys at trial. Michael Tomasulo, a
`partner at Winston & Strawn LLP in Los Angeles, said it quickly became clear the judge isn't going to tolerate
`witnesses who don't directly answer questions.
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`During the opening day of testimony, the judge several times politely interjected and reminded witnesses
`that they had been asked a "yes or no" question, according to Tomasulo.
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`"I think the judge's position is, if you have a fair question, you're going to get a straight answer," he said.
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`Expert witnesses, in particular, tend to know when an answer might be harmful to their case and sometimes
`try to dance around a topic, avoiding a direct answer. During a deposition, Tomasulo said, attorneys might
`spend an hour trying to get an expert to admit something.
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`Albright's direct approach can cut through some of that and speed things up.
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`"I think a lot of lawyers will probably be grateful to be in a courtroom where the witnesses, especially the
`expert witnesses, are going to be required to answer direct questions," Tomasulo said.
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`Remember the Texas Connections
`Roku last year asked Albright to transfer the case to the Northern District of California, arguing that was "a
`clearly more convenient venue." At the time, Roku said all of its relevant personnel and facilities were in
`California, with the exception of one engineer who worked from his home in Nevada.
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`During the trial, Roku's first witness was an executive based in Austin. He talked, in part, about how
`important West Texas is to the company, Tomasulo said.
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`This wasn't lost on Albright. The judge suggested he might revisit Roku's motion requesting the transfer to
`see if there were inconsistencies, Tomasulo said.
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`https://news.bloomberglaw.com/ip-law/busy-ip-judge-albright-holds-first-patent-t... 10/27/2020
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`Busy IP Judge Albright Holds First Patent Trial: Takeaways (2)
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`Roku is far from the first defendant sued in Waco to ask the case be sent to another state. There have been
`dozens of similar requests, which often include companies downplaying their connections to Texas and
`arguing it's more convenient to litigate the case elsewhere.
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`Companies will need to be careful about trying to distance themselves from West Texas, then later touting
`their Texas bona fides for jurors.
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`"I would view it as something that people ought to be thinking about," Tomasulo said. "If you're going to be
`going to trial here, you should be thinking about whether you're saying something right now that you'll wish
`you hadn't said."
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`Virus Precautions Were in Effect
`There have only been a few in-person jury trials in patent cases during the coronavirus pandemic.
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`Attorneys said there were a number of precautions taken in the courtroom, including spacing the seven
`jurors throughout the jury box. The room was well-ventilated, and there was plexiglass around the witness
`stand. (Tomasulo described it as looking something like a dunk tank.)
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`Albright also encouraged social distancing, and masks were prevalent throughout the courtroom. Jurors and
`spectators wore them. The judge did, too, when a witness was on the stand.
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`Nall said the environment felt safe and jurors seemed "very comfortable." Some attorneys had previously
`wondered how masks and other virus precautions would change the dynamics of the courtroom. Nall said
`she didn't notice a major impact.
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`"I thought the tradeoff of having witnesses not have masks and having the lawyers not have masks seemed
`like a good balancing," Nall said.
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`(Updates in 3rd paragraph with jury verdict. An earlier version corrected the
`spelling of the name Nall in the penultimate and final paragraphs.)
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`To contact the reporter on this story: Matthew Bultman in New York at
`m buitman@correspondent.bloomberglaw.com
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`To contact the editor responsible for this story:
`John Hughes at jhughes@bloombergindustry.com;
`Keith Perine at kperine@bloomberglaw.com
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`© 2020 The Bureau of National Affairs, Inc. All Rights Reserved
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