7/9/2021
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`Albright Says He'll Very Rarely Put Cases On Hold For PTAB - Law360
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`Albright Says He'll Very Rarely Put Cases On Hold For
`PTAB
`
`By Ryan Davis
`Law360 (May 11, 2021, 6:50 PM EDT) -- Western District of Texas Judge Alan Albright on Tuesday detailed
`the unusual situations in which he'd stay a patent case to await a Patent Trial and Appeal Board decision,
`but said that even amid the pandemic, he believes he can finish cases faster than the board.
`
`Speaking at the American Intellectual Property Law Association's virtual spring meeting, Judge Albright, the
`nation's busiest patent judge, said that during his two and a half years on the bench, he has only put "one
`or two" cases on hold so the PTAB can review the patent.
`
`While some other judges routinely stay patent cases until the board determines whether the patent at issue
`is invalid, Judge Albright said he sees no reason to do so in most instances, since he schedules trials so
`quickly that they'll likely be over before the board rules.
`
`"We look at every request carefully," he said, and litigation will be put on hold "if there's a situation where it
`would make really good sense to stay a case."
`
`However, Judge Albright said to date he has only done that when the plaintiff has first sued other companies
`over a patent in a different district, and the defendant in that case has initiated a PTAB review that is well
`underway by the time another company is sued in the Western District of Texas.
`
`In that scenario, where "the PTAB process is already down the road and it looks like that would be the most
`prudent way to do it, that's fine and I would defer" to the board, Judge Albright said in response to
`questions from moderator Sharon Israel of Shook Hardy & Bacon LLP, a former AIPLA president.
`
`In just about every other case, though, Judge Albright said he has scheduled cases to go to trial within 24
`months of when the complaint is filed. As a result, he said he doesn't see the need to wait for the PTAB to
`rule on a defendant's challenge to the patent, since the board typically makes decisions in 18 months.
`
`He noted that while "COVID has certainly interrupted our trial process," he's still scheduling trial dates for
`two years out, as he said in prepandemic times was his goal.
`
`Noting that his docket currently has 1,250 civil cases, about 60% of which are patent cases, he added that
`"my belief is that if someone files a patent case, they're entitled to have a jury trial," but that the quick trial
`dates also encourage parties to reach settlements.
`
`Judge Albright said his impression is that the PTAB was created by the America Invents Act in 2011 due to
`concerns that patent cases in district court were taking too long and that there needed to be a faster forum.
`He said that is what he's trying to provide in his court.
`
`"It seems to me that it's beneficial to all parties to have a docket where the case gets resolved in the same
`manner it would in the PTAB, meaning in a relatively sane period of time," he said. "I've never heard anyone
`who's said in any civil case, 'Gosh, I wish this judge would spend another three years working on this case.'"
`
`Judge Albright alluded to the possibility that his current practice could be challenged at the Federal Circuit.
`
`"I may get guidance from the people who grade my papers at some point that that's not the right approach,
`but as of right now, I haven't gotten that guidance," he said.
`
`He also noted that he has no reservations about the PTAB system itself, saying that "everyone I know who
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`Albright Says He'll Very Rarely Put Cases On Hold For PTAB - Law360
`sits as a PTAB judge is a thousand times smarter than me. They're great lawyers and I think it's a very good
`system."
`
`One of those judges, PTAB Chief Judge Scott Boalick, was on the panel with Judge Albright and fielded
`questions about the board's current practice of exercising its discretion not to review patents when a trial is
`looming in district court, often in Judge Albright's courtroom.
`
`Judge Boalick said he was constrained about what he can say about the policy, which is the subject of
`pending litigation by Cisco, Apple and other technology giants who say it unfairly limits the ability of
`accused infringers to challenge patents at the board. He said the board is currently reviewing the practice
`and the more than 800 public comments that were submitted about it last year.
`
`"We've read through all of them and we're currently pondering our next steps," Judge Boalick said. "I don't
`have definitive next steps for you right now, but we are looking at a whole range of options."
`
`--Editing by Alanna Weissman.
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