11/26/21, 7:41 PM
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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.
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`11/26/21, 7:41 PM
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`Albright Says He'll Very Rarely Put Cases On Hold For PTAB - Law360
`
`"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 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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