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`Catching Up On Patent Litigation With Judge Albright - Law360
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`Catching Up On Patent Litigation With Judge Albright
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`By Dani Kass
`Law360 (March 14, 2023, 1:33 PM EDT) -- U.S. District Judge Alan Albright's reputation as a
`go-to jurist for patent owners has been left in limbo as the Western District of Texas adjusts to
`a rule making it harder for any one judge to amass patent suits. In a wide-ranging recent
`interview with Law360, the former patent litigator discusses how that rule is playing out, what
`jury trials have been like and why his dog has an unusual name.
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`Since joining the bench in 2018, Judge Albright has incited controversy by soliciting patent
`cases and building up a huge docket in a court where he's the sole district court judge, leading
`to an order last year that patent cases filed in Waco must be randomly assigned throughout
`the district.
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`Judge Albright's name also has become associated with the Federal Circuit repeatedly granting
`mandamus petitions overriding both his timeline for deciding transfer motions and his low bar
`for keeping cases in Waco. Those orders are sure to stick with him, especially because the
`judge got a Rhodesian Ridgeback two years ago and gave him the name Mandamus.
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`Alan Albright
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`U.S. District Judge Alan Albright's Rhodesian Ridgeback, Mandamus. (Courtesy of Judge Albright)
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`"It was actually my wife who named him," the judge told Law360. "She just thought it was funny how much press I was
`getting about being mandamused."
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`The judge held his first patent trial in October 2020 and has now overseen around 20 such trials, mostly in Waco, where
`juries historically haven't been presented with them. He said jurors have been taking their job very seriously, and
`collectively, they haven't shown to be "runaway plaintiffs juries," as was speculated when Waco first became a hot spot
`for patent owners.
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`"I've been unbelievably impressed with the quality of the juries. [Patent trials] are overwhelming, and there's an awful lot
`to take in," the judge said. "They're smart. They're listening. And I think they have a really good internal tuner to know
`when people are telling the truth and when they're not."
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`Judge Albright aims to have a jury trial set each week and gets "unhappy" if that's not the case.
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`"If I'm not in court, it's because something that week settled," he said. "Then my clerks are scrambling, because they
`know I'm unhappy, and they're backfilling trying to find hearings that I can conduct so that I have something to do."
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`Not that there isn't plenty of work to do. In fact, the workload was so large that he was granted a second magistrate
`judge in 2021. Former patent attorney Derek Gilliland was sworn in last April, and handles earlier stages of patent
`cases, like claim construction during Markman hearings and discovery hearings.
`
`"I should go to church every day and light a dozen candles," the district court judge said in appreciation of his new
`colleague.
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`While Judge Albright said longtime U.S. Magistrate Judge Jeffrey C. Manske has been "working his tail end off" on his 500
`non-patent cases and handling all but sentencing on criminal cases, Judge Gilliland has been able to take on some of the
`patent load.
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`Judge Albright is still doing some claim construction hearings and discovery hearings, but he said there are far fewer than
`before, which means he can focus his energy on trials.
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`"Anything you see on Derek's schedule — in the past, it would have been me," Judge Albright said. "Which has to mean,
`whether I like it or not, that if it's between the two of us, it's being done better."
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`Judge Albright's dog enjoys having Judge Gilliland around, too.
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`"He has a French bulldog [named Frankie], so during the day, my dog and his dog are up in our courthouse, and they
`just run back and forth between the chambers and play with each other," Judge Albright said.
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`When Judge Albright is not overseeing patent cases, his docket includes sentencing in criminal cases, a role he doesn't
`take lightly.
`
`"Two weeks ago, I was in the middle of a patent trial where you have people beating each other up over what an expert's
`going to say, and then you spend the morning putting people in jail for 10 or 20 or 30 or 40 or 50 years," he said. "It's
`just a completely different skill set and a completely different emotional set."
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`One of the reasons Judge Albright has been able to amass so many patent cases — at one time up to 25% of newly filed
`cases in the U.S. — is that all cases filed in Waco were, until recently, automatically assigned to him.
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`In late 2021, the automatic assignment led to concerns from Congress and the chief justice about how courts in this
`situation could lead to plaintiffs shopping for their preferred judge. In July, the Western District of Texas' chief judge
`ordered that any patent cases filed in Waco be randomly assigned to one of 12 judges in the district.
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`Judge Albright said the decision has had "zero impact" on his immediate work.
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`"How it will impact what it will look like in 2024, I don't know," he said. "We have fewer cases because other judges have
`gotten them — and I've been really very impressed about what a great response judges have had to getting those cases
`— but for me, my docket is so much more mature. I'm busy with that which was filed in 2021."
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`There were 867 patent cases filed in the Western District of Texas last year, down from 981 the year before, according to
`Lex Machina's latest patent litigation report. The report said the lower filings in 2022 appear to be a result of the chief
`judge's order. However, the Western District of Texas still had the largest percentage of new patent suits, with nearly
`23%.
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`The Federal Circuit's reprimands of Judge Albright keeping his patent docket large while delaying or denying transfer
`motions peaked in the back end of 2021. Although the mandamus orders have slowed down, they haven't stopped.
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`In October and November 2021, the Federal Circuit issued mandamus orders overriding his decisions 10 times. The
`mandamus grants are more sporadic now, but he was ordered to rule on a transfer motion the first business day after
`this interview with Law360.
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`Judge Albright said he met several of the Federal Circuit judges at the end of last year, some for the first time, and that
`they were "warm and collegial." The district court judge said he believes things have calmed down now that he has more
`guidance from the appeals court, pointing out that the more recent mandamuses have been for "unique issues."
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`A key reason why Judge Albright has attracted so many cases was his stated goal of getting to trial within two years of
`a complaint being filed — which is only six months longer than the Patent Trial and Appeal Board's 18-month mandate to
`make decisions on patent invalidity. Unlike many of his peers, Judge Albright almost never stays proceedings to let the
`PTAB make its decision first.
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`"My logic from the beginning was that there's no unfairness to either side by not staying a case for the PTAB when I can
`try the case as quickly as they can resolve it," he said. "And so far, I think that's proven to be true."
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`A Law360 review found that more than half of Judge Albright's patent cases reached verdict within his 24-month goal.
`His other patent cases lasted between 25 and 32 months. The one outlier is the last of three cases between VLSI and
`Intel, which ended in a mistrial due to a COVID-19 outbreak in April, and was retried in November.
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`When asked if he'd consider making plaintiffs release information like litigation funding as part of their suits — which is
`causing a ruckus in Delaware, where Chief U.S. District Judge Colm Connolly is requiring it — Judge Albright didn't
`hesitate.
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`"No," he said. "I'm not even slightly interested."
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`In addition to standard judge duties, Judge Albright also runs a class at his alma mater, the University of Texas at Austin
`School of Law, where students get firsthand experience litigating patent cases. Each week, students argue motions from
`real cases on the judge's docket, ranging from motions to dismiss to claim construction at Markman hearings to motions
`for summary judgment.
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`The proceedings are held in Senior U.S. District Judge James Nowlin's courtroom in Austin, in front of either Judge
`Albright or volunteers including magistrate judges and U.S. District Judge Robert Pitman.
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`"Last year, all 18 kids did three Markman hearings in a row," Judge Albright said. "They were so good at that point in the
`semester, that any of them could have appeared in my court the next day for a Markman hearing."
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`Before Judge Albright was made a federal judge, he worked as a patent litigator, with partner positions at Bracewell LLP,
`a predecessor to Eversheds Sutherland, Fish & Richardson PC, DLA Piper predecessor Gray Cary, and Thompson & Knight
`LLP. He also served as a magistrate judge for the Western District of Texas for much of the 1990s.
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`When asked what he wished he knew as a litigator, Judge Albright immediately said to cut everything in half.
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`"Whether I'd be arguing in front of a jury or arguing in front of a judge, whatever I think I want to argue, it would be
`better if I only did 50% of it," he said. "It's better to go into a hearing with your best argument and leave it at that and
`to do it as quickly as possible than to have five arguments."
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`Narrowed and well-developed arguments are what will keep the attention of a jury, and will make sure the judge doesn't
`have to race through motions or other filings, according to Judge Albright.
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`"If I were back in court, I would never file more than one Daubert motion on one thing, and on motions for summary
`judgment, [it's the] same deal," he said. "I think people lose credibility the more things that they present. It's almost
`like, 'Well, this one wasn't that great, so instead of having one great thing, we'll have 11 adequate things. That's the
`wrong way to approach, at least, me."
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`"Everyone could do less. Everyone should do less," he said.
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`--Editing by Nicole Bleier.
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`Note: Law360 is owned by LexisNexis Legal & Professional, a RELX company, which owns Lex Machina.
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`All Content © 2003-2023, Portfolio Media, Inc.
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