6/24/2020
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`West Texas Cements Its Place As Patent Hotbed - Law360
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`West Texas Cements Its Place As Patent Hotbed
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`By Ryan Davis
`Law360 (February 26, 2020, 9:30 PM EST) -- The Western District of Texas quickly became one of the nation’s busiest courts for patent cases
`in 2019 after a former Bracewell litigator took the bench in Waco and began encouraging patentees to file suits there, and the influx of new
`cases shows no signs of slowing.
`
`Judge Alan D. Albright of the Western District of Texas, a former patent lawyer, has made it clear that he enjoys patent cases and has encouraged litigants
`to file in his district.
`
`According to a new year-in-review report from Lex Machina, 279 patent complaints were filed in the Western District of Texas last year,
`putting it in fourth place on the list of busiest dockets. Before former Bracewell LLP patent lawyer Alan D. Albright was confirmed as a district
`judge in 2018, the number of suits filed there had never reached triple digits in one year.
`
`The district lagged far behind the District of Delaware, which took the top spot with 1,001 patent complaints in 2019. But it was in a tight race
`with the traditionally busy courts that took second and third place: the Central District of California and the Eastern District of Texas, which had
`346 and 333 cases, respectively.
`
`"I think corporations and law firms need to make sure that they view the Western District of Texas as one of the top venues that they or their
`clients are going to get sued in," said Victor Johnson of Dykema Gossett PLLC’s Dallas office.
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`West Texas Cements Its Place As Patent Hotbed - Law360
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`"The trend is unmistakable at the moment," said David Henry of Gray Reed & McGraw LLP's Waco office.
`
`Since Judge Albright has made clear to the bar that he enjoys patent cases and has actively encouraged litigants to file in the district with
`promises of speedy litigation, Henry said he expects the court's docket to continue to grow.
`
`"As more and more people become aware of some of these litigant-friendly approaches and pragmatic ways to move the case along, I can't
`imagine that people will not continue to flock here," he said.
`
`Five years ago, the Eastern District of Texas sat firmly atop the list of busiest patent courts with a staggering 2,546 cases, driven by a
` decision
`reputation that its judges and juries were friendly to patentees. Filing trends changed after the U.S. Supreme Court’s TC Heartland
`in 2017, which discarded rules that had effectively allowed patent suits to be filed anywhere.
`
`Under the decision, suits must now be filed either where the defendant is incorporated or where it has committed acts of infringement and has
`a “regular and established place of business.” That boosted filings in Delaware, where many companies are incorporated, and California, where
`many defendants are based, while cases in the Eastern District of Texas have declined.
`
`Judge Albright, who took the Western District of Texas bench in September 2018, has shaken up the filing trends by touting his court at
`conferences as an ideal place to file patent suits, with rules aimed at streamlining cases and moving them quickly to trial.
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`Since numerous major tech companies that are frequently accused of patent infringement have large facilities in Western District cities like
`Austin and San Antonio, the district will likely see fewer venue challenges that often spur transfer motions in the Eastern District, attorneys
`say.
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`"I think that the majority of these cases will be found to be properly filed in this venue," Johnson said.
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`West Texas Cements Its Place As Patent Hotbed - Law360
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`There are early signs that 2020 could be an even busier year for the Western District, with a burgeoning rush of cases that could give it a shot
`at becoming the busiest patent court.
`
`As of this week, 109 new patent complaints have been filed in Delaware this year, while 108 have been filed in the Western District. That puts
`them neck-and-neck for the top spot, with more than double the 45 new cases filed in the Central District of California, which is in third place.
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`West Texas Cements Its Place As Patent Hotbed - Law360
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`In his short time on the bench, Judge Albright has developed a reputation for running a court that has advantages for plaintiffs, while his
`patent expertise gives litigants on both sides a sense that he will manage cases fairly and effectively, attorneys who have appeared before him
`say.
`
`"I think his experience and his reputation as a practitioner has made a lot of people comfortable with filing cases in his court and trying to stay
`in his court," said Craig Cherry of Haley Olson PC's Waco office. "They know he knows what he's doing and is going to move the case along in
`an efficient manner."
`
`For instance, the judge has a policy of trying to resolve discovery disputes with a quick phone call with the parties, rather than through
`protracted motion practice, which has helped speed cases along.
`
`"His docket is not being overwhelmed with a lot of discovery disputes,” Johnson said. “He's able to handle the workload we've seen so far
`without there being any significant impact on the time to trial for his cases."
`
`In addition, the judge has said that he will rarely if ever rule on motions to invalidate patents on eligibility grounds until after claim
`construction. That policy was welcomed by patent owners who know their cases are unlikely to be short-circuited by eligibility issues early on,
`as they are in some courts.
`
`The judge's standing orders on those issues and others mean that "you get a lot of predictability in what you can expect" during cases in his
`court, Henry said.
`
`Last week, Judge Albright handed down his first judgment in an intellectual property bench trial, awarding $3.6 million to Dwyer Group LLC in
`a dispute with a staffing company over trademarks for Dwyer's service company brands like Mr. Rooter.
`
`Johnson, who represented Dwyer, said Judge Albright ran a tight ship and had a firm grasp of the issues in the case.
`
`"He was really well-prepared and well-versed in the law," he said. "As a trial lawyer, it really made the case seamless. It was a very thorough
`and quick process with him."
`
`As his docket has grown, Judge Albright has tweaked some of his practices, including an early commitment to let attorneys speak freely
`without interruption during claim construction hearings, Henry said. He has since moved away from that to limit such hearings to half a day,
`which is considerably shorter than in other courts.
`
`"In view of the rather crushing case load, he is having to be a little more stringent about time," Henry said.
`
`Judge Albright's experience as a patent litigator is also appealing for litigants deciding where to file suit, said J. Mark Mann of Mann Tindel &
`Thompson in Henderson, Texas.
`
`"He's an active judge who understands how to handle patent cases, and I think it's a receptive court for patents," he said. "That's a good
`model for plaintiffs wanting to pick that venue."
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`The Western District is "quickly becoming a preferred patent venue across the U.S.," and it is likely to remain so going forward, Johnson said.
`
`"I think we'll continue to see him pressing for those cases to be filed if possible in his courtroom, and because of the background he has, he'll
`be able to handle a substantial docket of patent cases," he said.
`
`--Editing by Aaron Pelc and Alanna Weissman.
`
`Law360 is owned by LexisNexis Legal & Professional, a RELX Group company, which owns Lex Machina.
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