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`March 9, 2022
`Volume XII, Number 68
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`Move Over Marshall, There's a New Sheriff in Town
`-The Rise of Waco and the Western District of
`Texas
`Sunday, March 28, 2021
`
`Since the mid-20oos, mention Marshan, Tyler, She,man, Beaumont or
`Texarkana to an experienced patent litigator and you would get knowing
`nods about this string of sma11 Texas towns, t ips on their favorite BBQ or
`Tex-Mex restaurants, and war stories about the big patent wars fought there.
`The Eastern District of Texas, along with the District of Delaware and the
`Northern and Central Districts of California, rose to prominence as the
`primary battlegrounds for major technology compan ies and their non(cid:173)
`practicing distant cousins ("NPEs") to determine the scope and moneta1y
`value of their innovations.
`
`Given the Supreme Court 's restatement of ven ue requirements in TC
`Heartland, Waco is not where you would expect the new center of US patent
`litigation to arise. Deep in the heart of the Texas Bible Belt , Waco lacks the
`abundance of technology companies commonly found in its District
`neighbors to the south, such as Austin and San Anton io. Even with Austin's
`prominence as a hi-tech hub, the Western District had on ly 2.5% of the
`patent cases filed nationwide in 2018.
`
`That changed dramatica11y, however, with the appointment of District Judge
`Alan Albright to the Waco Cou rthouse in September 2018. A former patent
`litigator, Judge Albright intentiona11y adopted a combination of patent
`owner-friendly policies and special court rules to attract patent plaintiffs
`(the party with first pick on venue) to his courtroom. As a result, 792 patent
`cases were assigned to Judge Albright in 2020, the most of any judge in the
`country by a ve1y wide margin. The caseload shifted west , but not past the I-
`35 corridor.
`
`Article By
`
`Ronald S. Lemieux
`Steven M. Auvil
`
`Squire Patton Boggs (US) LLP
`Global IP and Technology Law Blog
`
`SQUIREC}
`PATTON BOGGS
`D rl lm l31'J E Q II
`
`Related Practices & Jurisdictions
`
`Intellectual Property
`Civil Procedure
`Litigation I Trial Practice
`Texas
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`Venue Manipulation Obviates
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`Venue Analy sis
`By Intellectual Property Practice Group
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`Move Ov er Marsh all, There's a New
`Sheriff in Tow n- The Rise of Waco and
`the Western District of Tex as
`By Ronald S. Lemieux
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`Despite Not Being Tied to a Particular
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`Document title: The IP Rise of Waco and the Western District of Texas
`Capture URL: https://www.natlawreview.com/article/move-over-marshall-there-s-new-sheriff-town-rise-waco-and-western-district-texas
`Capture timestamp (UTC): Wed, 09 Mar 2022 15:03:28 GMT
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`So why the recent rush to file in Waco? To be clear , most patent s uits filed in Waco are by NPEs looking for a faster and
`more predictable road to settlement and not necessarily the largest possible jury award. But as the recent verdict in VLSI
`v. lnrel revealed, when given the right case, juries in the Western Dis trict have no trouble granting the $1Billion + awards
`seen in the other major patent venues. For non -practicing plaintiffs, filing in Waco also has the benefits of knowing
`exactly who your judge will be and that the chance of an early invalidation of the asserted patent(s) by either the court or
`the PTAB is essentially zero.
`
`The case assignment practice used in the Western District guarantees that as long as the case is first filed in Waco, it will
`be assigned to Judge Albtight. This is true even if the location of facilities, witnesses and documents make the case more
`convenient to another Division in the District. Once assigned to Judge Albright, he retains supervision of the matter even
`if the case transfers later to Aus tin or San Antonio at the request of the litigants.
`
`Of particular interest to non -practicing plaintiffs, Judge Albright has never granted a pleading stage motion for lack of
`patentable subject matter (often called "101" or "Alice" motions). Judge Albright's well -publicized judicial philosophy is
`that given a patent's presumption of validity, such motions are approptiate only after claim construction discove,y is
`completed and a Markman order is entered.
`
`Nor does Judge Albright typically grant 28 U.S.C. §1404(a) motions to transfer venue outside of the Wes tern Disttict for
`the convenience of witnesses and evidence given the large number of technology companies located in Austin. After
`repeated criticism from the Federal Circuit for delaying his consideration of fully briefed venue motions unt il after claim
`construction, Judge Albright this week entered Standing Order er that requires all venue motions to be dete1mined prior
`to claim construction. This Order goes into effect immediately. v.n1ether Judge Albright's new procedure will lead to
`granting more transfer requests remains to be seen, however. Each time he was reprimanded by the Federal Circuit for
`delaying consideration of transfer until after claim construction, Judge Albright quickly issued a flat denial of the motion.
`
`Despite Judge Albright's recent Order providing for faster dete1mination of venue challenges, there are still multiple
`factors making Waco a preferred destination for patent disputes. Judge Albright's standing Order Governing Proceedings
`for Patent Cases (OGP) , issued 26 February 2020, provides a very accelerated time to trial, usually within 18 months of
`the initial case management conference. The OGP also, uniquely, s tays all discove1y other than what is necessa1y for
`claim construction until after the Markman hearing and generally limits the n umber of te,ms for construction to ten,
`unless the part ies can convince the cou1t that more are required for that case. From the perspective of NPE's, the
`restrictions contained in the OGP tend to minimize discove,y expenses prior to claim construction and encourage more
`meaningful settlement discussions once the court's constructions are known.
`
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`Document title: The IP Rise of Waco and the Western District of Texas
`Capture URL: https://www.natlawreview.com/article/move-over-marshall-there-s-new-sheriff-town-rise-waco-and-western-district-texas
`Capture timestamp (UTC): Wed, 09 Mar 2022 15:03:28 GMT
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`Page 2 of 5
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`In view of his streamlined time to trial, Judge Albright is also predisposed to deny motions to stay his proceedings
`pending a validity challenge via IPR before the PTAB. Judge Albright has publicly stated that he will not s tay cases
`pending the outcome of an IPR absent special circumstances, since he believes that patent owners deserve jmy t tials in
`federal court and that he can "get a patent ttial resolved more quickly than the PTAB can." Without a s tay, and in view of
`a Markman decision and likely trial date before the PTAB could issue a final written decision , the PTAB may increasingly
`rely on these facts to deny institution of IPRs under 35 U.S.C. §314(b) for cases pending in the Western District.
`
`Taking these features together (ability to pick your judge, low likelihood of early invalidation of the asserted patent, low
`chance of t ransfer, lower initial discovery costs and a fast timeline to trial), it is easy to see why the Western Dis trict
`became the overwhelming favorite jurisdiction of plaintiffs in 2020. Will it continue in 2021? Probably, as Jong as Judge
`Albright is at the helm. In many respects, having a large portion of the lower-end NPE cases consolidated in one court
`with expedited procedures and limited discove1y is a reasonable way to keep the cost of such nuisance suits contained. At
`the same , the Chief Judge in the WDTX has left whether to hold trials during the Covid pandemic to the individual
`discretion of each Judge. As demonstrated by the recent VLSI v. Intel trial, Judge Albright believes trials can proceed safely
`during the pandemic when the proper precautions are taken.
`
`Should other judges in the Western District decide they want a larger slice of the patent docket, however, all it might take
`to throw the current system into chaos would be a change in the way patent cases are assigned (such as a move to the
`"wheel" approach used in the Northern District of California). Suddenly, the predictability and unifo1mity of Judge
`Albright's approach could completely fall apart as different Judges adopt their own rules and systems. In light of Judge
`Albright's enthusiasm for building the largest patent docket in the count1y , however, significant changes to Western
`District practice appear unlikely at this t ime. Indeed, the VLSI verdict likely made plaintiffs' view of the potential pot of
`gold in Waco shine jus t a little bit blighter.
`
`© Copyright 2022 Squire Patton Boggs (US) LLP
`National Law Review, Volume XI, Number 87
`
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`Document title: The IP Rise of Waco and the Western District of Texas
`Capture URL: https://www.natlawreview.com/article/move-over-marshall-there-s-new-sheriff-town-rise-waco-and-western-district-texas
`Capture timestamp (UTC): Wed, 09 Mar 2022 15:03:28 GMT
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`ABOUT THIS AUTHOR
`
`Ronald s. Lemieux
`Partner
`Ron Lemieux has served as lead counsel in more
`than 200 intellectual property disputes for clients
`such as ASUS, Sony Computer Entertainment
`America, PINC Solutions, MediaTek, ChipMOS
`Technologies, Rohm, Olympus, Konami Digital
`Entertainment, Silicon Graphics, Sumitronics, IDT,
`Winbond , FIC, Pegatron, Sakata Seeds, and Royal
`Sluis, among others. He has extens ive trial
`experience and has taken more than 20 cases to
`final verdict in both ju1y and bench trials in
`courtrooms nationwide. Ron has also argued
`several successful appeals before the Federal
`Circuit.
`
`ronald.lemieux@squirepb.com
`650-843-3330
`WIYW.squirepattonboggs.com
`WIYW.squirepattonboggs.com/en/blogs
`Steven M. Auvil
`Partner
`Steve Auvil leads our Intellectual Property &
`Technology Practice Group's litigation practice in
`the us, and his practice is focused on litigation of
`intellectual property (IP) disputes. As an engineer
`and patent lawyer, he has been exposed to a wide
`variety of technologies, including control systems,
`power
`electronics,
`communication
`systems,
`medical devices,
`steel production, complex
`mechanical systems and software systems. Steve
`has been
`listed
`in Chambers USA Leading
`Lawyers since 2007 and The Best Lawyers in
`America since 2006.
`In more ...
`steven.auvil@squirepb.com
`202-626-6632
`WIYW.squirepattonboggs.com
`WIYW.squirepattonboggs.com/en/blogs
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`Document title: The IP Rise of Waco and the Western District of Texas
`Capture URL: https://www.natlawreview.com/article/move-over-marshall-there-s-new-sheriff-town-rise-waco-and-western-district-texas
`Capture timestamp (UTC): Wed, 09 Mar 2022 15:03:28 GMT
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`650-843-3330
`WIYW.squirepattonboggs.com
`WIYW.squirepattonboggs.com/en/blogs
`
`Steven M. Auvil
`Partner
`Steve Auvil leads our Intellectual Property &
`Technology Practice Group's litigation practice in
`the us, and his practice is focused on litigation of
`intellectual property (IP) disputes. As an engineer
`and patent lawyer, he has been exposed to a wide
`variety of technologies, including control systems,
`power
`electronics,
`communication
`systems,
`medical devices,
`steel production, complex
`mechanical systems and software systems. Steve
`listed
`in Chambers USA Leading
`has been
`Lawyers since 2007 and The Best Lawyers in
`America since 2006.
`In more ...
`steven.auvil@squirepb.com
`202-626-6632
`WIYW.squirepattonboggs.com
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`Document title: The IP Rise of Waco and the Western District of Texas
`Capture URL: https://www.natlawreview.com/article/move-over-marshall-there-s-new-sheriff-town-rise-waco-and-western-district-texas
`Capture timestamp (UTC): Wed, 09 Mar 2022 15:03:28 GMT
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