Guest Post: How the West Became the East: The Patent Litigation Explosion in the Western District of Texas

Guest post by Paul R. Gugliuzza & J. Jonas Anderson.  Paul Gugliuzza is Professor of Law at Temple University Beasley School of Law. Jonas Anderson is Associate Dean for Scholarship and Professor of Law at American University Washington College of Law.

Move over Marshall. The new capital of American patent litigation is Waco, Texas. Waco’s sole federal judge, Alan Albright—who took the bench less than two years ago—now hears more patent cases than any other judge in the country.

It’s all happened quickly. As recently as 2018, the Western District of Texas, which spans from Waco, Austin, and San Antonio in the central part of the state to El Paso in its far western reaches, received only 90 patent cases, a mere 2.5% of patent cases filed nationwide. Two years later, the Western District is on pace to receive 850 patent cases by year’s end, roughly 22% of patent cases filed nationwide and more than any other district in the country.

Practically all of those cases are on Judge Albright’s docket. As the figure below shows, the Waco Division received a mere 28 patent cases in 2018, the year he took the bench. If current trends hold, Judge Albright alone will receive 779 patent cases in 2020, an increase of 2682%!

The explosion of patent cases in Waco—the vast majority of which are filed by non-practicing entities—is fueled by Judge Albright’s concerted efforts to attract patent plaintiffs. He has been explicitly advertising his district—through presentations to patent lawyers, comments to the media, procedures in his courtroom, and decisions in patent cases—as the place to file your patent infringement lawsuit.

In a draft article, now available on SSRN, we identify five reasons why the Western District is attractive to patentees and explain why they are problematic:

1. The Western District’s case assignment practice enables plaintiffs to predict—with absolute certainty—that Judge Albright, not any of the 16 other judges sitting in the district, will hear their case. All they have to do is select “Waco” from the drop-down menu on the court’s electronic filing system and the case is automatically assigned to Judge Albright.

2. Judge Albright has adopted a fast-track scheduling order that sets deadlines useful to patentees seeking to elicit quick settlements and avoid PTAB review.

3. Venue transfer decisions: Judge Albright rarely transfers cases out of the Western District of Texas (only 3 of 14 inter-district transfer motions have succeeded to date), a practice also used by judges in the Eastern District of Texas during its heyday as the go-to district for patent litigation. More remarkably, Judge Albright regularly transfers cases filed in the Western District’s Waco Division to its Austin Division while retaining the case on his own docket (50 cases and counting so far).

It’s worth pausing to emphasize what this means: patentees are filing in Waco to guarantee Judge Albright is assigned to the case. But they do not actually have to litigate in Waco to keep the case in front of Judge Albright. Rather, they can ask him to transfer the case to the more desirable locale of Austin and he will do it as a matter of course—even though, if the case had been filed in Austin originally, there is zero chance Judge Albright would have been assigned to it.

4. Judge Albright seems reluctant to stay litigation pending related disputes in other forums, such as the PTAB, not just because of the aggressive schedule he sets but also because of a normative belief that patentees have a constitutional right to have a jury decide patent validity.

5. Judge Albright has never invalidated a patent on eligibility grounds (10 motions, 10 denials), even though many of the patents being asserted are the “do it on a computer” patents at which the Supreme Court’s Alice decision was most directly targeted.

Though many reforms could help solve these problems, we focus on two.

First, there’s surprisingly no law that requires cases to be randomly assigned among judges of a particular district. Mandating random assignment would curb the judge shopping that incentivizes judges to distort procedures and the law for the specific purpose of attracting litigation.

Second, venue in patent cases should be tied to geographic divisions within a judicial district, not just the district as a whole. As applied to the Western District of Texas, that reform would thwart the tactic of using a defendant’s activities in Austin to establish venue in Waco for the sole purpose of shopping for the Waco division’s only judge.

Read the full article at https://ssrn.com/abstract=3668514.

 Edit: updated with a more recent graph.

111 thoughts on “Guest Post: How the West Became the East: The Patent Litigation Explosion in the Western District of Texas

  1. 13

    I wonder what Occam would say to the fact that while Greg professes to have ‘blocked’ me, he sure has spilled a lot of ink in his continued attempts to besmirch me, all the while avoiding ANY engagement on the merits of the points that I have (long and consistently) held and presented.

    As even Ben notes, it is the LACK of engagement that is a telltale sign of ‘disingenuous’ (my take on Ben’s point).

    Maybe in addition to being a vassal of ‘Big Pharma,’ Greg has a side job of building large wooden horses…

    (note as well the hypocrisy of Greg’s leaning to Occam’s Razor as that is the ‘type’ of thing that he would attempt to besmirch me for using) – as usual, Greg does what he tells others not to do, in a (continued) baseless vituperative attack on someone who routinely sinks Greg’s desired narrative.

  2. 12

    I admit I don’t how anon has so much time to spend on here if he isn’t getting paid…

    Occam’s razor, friend. There are—to the best of my recollection—only two participants on this board whom esteemed personages like Ned Heller, David Boundy, etc. routinely called out as being palpably and obviously not law-trained: anon; & MM. It is not hard to see why Boundy & al. should express such skepticism. What evidence is there that either actually went to law school. If you ask either to cite some authority for his assertion, MM gives you vituperation, while anon gives you Schoolhouse Rock or Paper Chase or “common sense.” Neither ever gives you a case, or a statute, or a citation to the Congressional Record or Blackstone’s Commentaries.

    Strangely enough, these same two participants are also the two most likely to show up any time—day or night—and argue their same favorite hobby horses on any thread, regardless of topic. How do either of them get paid work done, with so much time spent writing posts?

    If a bird waddles like a duck, and swims like a duck, and quacks like a duck, it is probably a duck. So too, if a participant posts so regularly that it is hard to square the amount of time that the person spends composing posts with the idea of a billable hours quota, and yet that same person evidences no actual knowledge that might come from a real legal education, then that person is probably a paid commenter, not an actual lawyer.

    That is why I stopped engaging with both. Once one realizes that one’s interlocutor is not engaging—indeed, is professionally incapable of engaging—in good faith, what is the point of trying to engage? Neither will (or, in the past tense case of the late MM, could) engage except as their paymasters bid, so it was pointless to try to reason with either. As well hold the conversation with a robot programmed to say “coffee is served on the lido deck.”

    1. 12.1

      What a load of balderdash.

      It’s funny how you Greg were so often speechless and had NO citation (case, statute, Congressional Record, or Blackstone Commentaries) to ANY of the easy-to understand (what you apparently confuse as merely ‘Schoolhouse Rock or Paper Chase or even common sense’) references.

      Instead, all that YOU could (ever) do was slink away and apply your own ‘vituperations.’

      And you are quite wrong that I never did provide citations. I have provided plenty.

      That you think that ‘showing up at any time’ has anything to do with anything is your own ‘hobby horse.’ One of many that you adhere to without regard to counter points presented to you.

      No, Greg, it is quite clear that your choice of not responding is not because of me or my side of things, but instead is absolutely because you have no answers to the points that I have put to you.

      Not engaging? That, sir – would be your calling card.

      Duck that.

    2. 12.2

      I might be being dense, but the clear earnestness the last paragraph makes me wonder if the first three are actually sincere.

      The duck test does not work on Mars. That thing waddling, swimming, and quaking in a 95% CO2 environment is probably not a duck.

      People worth influencing could plausibly read or hear about the posts on Patently-O, but they probably don’t bother reading the poorly moderated commentary section and its associated crackpots. Further you wouldn’t expect to even reach much of the patent community through comments based on the number of people who comment here and the 1-9-90 approximation. So no one would bother to waste their money paying anyone to comment on this blog.

      1. 12.2.1

        [N]o one would bother to waste their money paying anyone to comment on this blog.

        Sure, I sympathize with this argument even if I no longer agree with it. This is the best possible argument against the idea that anon and/or MM are paid to comment—the idea of paid commentary implies the existence of someone willing to pay, and why would anyone be willing to pay for comments in this forum?

        I really cannot answer that question. Still and all, the existence of such a payor is not impossible, merely superficially implausible. Given the observed reality of anon & MM however, I find it easier to believe in the existence of such payors than in the idea that two such obvious knuckleheads could make a living as patent professionals when they (1) know so obviously little about the subject and (2) spend so much time writing posts not only here, but on multiple other patent blogs.

        In any event, it is not important to me to convince you of the existence of such payors, so it is fine if you remain skeptical. Consider this, however: Night Writer is not at all skeptical about the existence of a comment-payor. If one credits the idea of a comment-payor, would you at least agree that the two most plausible candidates around these parts to be paid commenters would be anon & MM?

        1. 12.2.1.1

          “If one credits the idea of a comment-payor, would you at least agree that the two most plausible candidates around these parts to be paid commenters would be anon & MM?”

          Actually, no! From what I’ve read, Chinese propagandists deploy their paid commenters as diffuse cheerleaders rather than debaters. In a world of social media trends and limited resources, that seems intuitively the correct approach to me. It is very hard to persuade someone on the internet via dialog! It seems like it would be much easier to create the appearance of community support for a position through a stream (proportional to the size of the community) of shallow posts to activate your latent allies in a community. I would expect paid commenters to use many names each with low posting frequencies while generally not engaging with other commenters. To be clear, I use “engagement” there in the loosest conceivable meaning of the term. But where MM or anon might reply with a nonsequitor, I believe a paid commentor would just switch to a new alias and post an independent comment advancing their talking point.

          “I find it easier to believe in the existence of such payors than in the idea that two such obvious knuckleheads could make a living as patent professionals when they (1) know so obviously little about the subject and (2) spend so much time writing posts not only here, but on multiple other patent blogs.”

          Consider an alternative hypothesis: retirement. It immediately conforms with your second observation. And it implies a potential for both being out of touch with the field and a touch of cognitive decline, which would align with the first observation. I’d suggest that it potentially fits with a third observation of my own: an especially disagreeable disposition, disinterested in mutual understanding (overrepresented in the advanced age community, but not universal!). It would also match well with the sudden decrease in postings by MM.

          1. 12.2.1.1.1

            while generally not engaging with other commenters

            And just whom of the regulars on these boards has ALWAYS called for actually engaging on the points at hand?

            This is an easy question.

            As to ‘retirement’ and the associated denigrations, sorry Ben, but you are very much off (in regards to me) on both.

            The fact of the matter is that I can comment so often and still be very much on point BECAUSE I know this stuff inside and out – the opposite of both of your suggested ‘cognitive decline’ AND ‘out of touch.’

            Whether or not there is a ‘disagreeable disposition’ is immaterial to any interest in mutual understanding. This is where you show your lack of understanding of what an attorney does (and how training comes to bear). Good attorneys may well be disagreeable – but they are fervently desirous of knowing and understanding the viewpoints of the other side (better then to fight against them).

            Now Malcolm DID exhibit a large degree of cognitive decline – as was shown in his late stage dependence SOLELY on emotional invective. Note that I pointed this out, and challenged him (nigh constantly) to come back to addressing the actual points presented. And it is Greg – like Malcolm – that chooses to NOT engage.

        2. 12.2.1.2

          Greg’s continued tropes in efforts to malign my comments continues with his insistence that there is no difference between Malcolm and myself.

          This is an outright
          L
          I
          E

          While both Malcolm and I could be harsh, there remained a world of difference between Malcolm’s purely emotional diatribes, and my biting posts that combined both sharpness of words and legal insights.

          His insistence of sniping from the sidelines in regards to “(1) know so obviously little about the subject” is also known to be a
          L
          I
          E
          given that he actually stopped engaging because HE had no comeback to the legal points that I presented countering his desired narrative. His notion of “(2)” comes about because of the amount of times that I would so present counter points TO his desired narratives. He simply could not handle that I not only had a better grasp of the legal points at hand, but that I would frustrate his narratives at every point.

          Rather than develop a better legal position, all that Greg “I Use My Real Name” DeLassus has decided to do is to clamp his hands over his ears, clench tight his eyes, and chant his spiel non-stop, NO MATTER the actual counter points presented.

          This latest spiel of his is a fine example, as I have mentioned when the issue was ‘hot and heavy’ in one of the (many) bouts of “can we all be civil here,” I affirmed that I was playing by the rules of this board in that I was NOT a paid commenter – that my comments were in fact my personal views.

          That Greg insists on ignoring this fact only denigrates Greg.

          He would be much better off simply admitting that I have been able to be a BETTER commenter on the patent blogs than he – even as I have often taken an opposing side to his narratives.

  3. 11

    Can I have my E.D. Texas Apple store back now? Had one 5 miles away, now the closest is the N.D. Texas around 15 miles away! First-world problems I know…

  4. 10

    This comes up over and over again where the paid bloggers run interference for the “professors.” The fact is that we know that many articles in law journals are paid for where the content is dictated by the client. No law journal article should be presented as scholarship unless there are sworn statements regarding whether the person has been compensated to produce the content of the law journal article.

    It is outrageous that you have an ethics part of this blog that does not even deal with this issue which is surely the most corrosive issue to the moral and ethical character of lawyers right now.

    Ben, I am not “so sensitive.” The fact is that professors pretend that they are putting out scholarship when in fact they are being paid by clients to write the articles. The NY Times had an article about this that I have cited many times. I guess it is the paid blogger’s amnesia that is affecting your memory.

    I would have no problem with an article like this if the author admitted upfront that they are being paid $100K to advocate by a non-profit that is funded by SV.

    So nice try Ben, but again just nonsense from you.

    1. 10.1

      Night Writer, before running this I asked both authors whether they had any financial disclosures or represented any relevant parties. They both responded that they did not. If there is a specific wording of a disclosure that you would like, you can post it here and I’ll consider it.

      1. 10.1.1

        Jason, thank you for asking that very important question prior to running this.

        While I share Night’s concern about the many “papers” that are surreptitiously paid for or otherwise “induced” (or whatever other term/s may be used) by unnamed parties, it’s good to know that you and Dennis ask this question of guest writers.

      2. 10.1.2

        That is good that you ask them those questions.

        I will look into it. The law journals need to be more similar to the science journals in disclosures of funding and with some type of recourse for a reader that believes that the papers are unethical. Now there is no recourse.

        The other issue is in the method of selecting these professors being selected by the law schools. We need to know the amount of influence big money has on ideology of the selections.

      3. 10.1.3

        What I think too Jason is that it is likely unethical of you and Dennis to permit paid bloggers to dominate this board.

        I think too that there are laws that might implicate some of the people on here for advocating positions without disclosing the fact that they are in fact paid advocates.

        1. 10.1.3.1

          The fact is that if you gave a whit about ethics then you should see that what is the most corrosive force in all of this is that we are infested with paid advocates masquerading as professors and bloggers.

          Nothing in IP is a greater problem than this. It makes it impossible to have a dialogue about any IP issue.

          1. 10.1.3.1.1

            Do you remember Ned Heller?

            He was a known paid advocate.

            And it showed.

            I could engage him in a conversation, lead him point by point up to a certain level, and then — at the precipice of a point detrimental to his paid advocacy, he would evade and obfuscate, even employ fake umbrage.

            And it did not matter at all how polite or how brusque I was — it was the legal point that he would refuse to engage with.

            That being said, I think that the larger detriment to actual dialogue is the absolute refusal to admit to counter points made, and the ‘merry go round’ of the same scripted starting points offered time and again, as if counter points were never made.

            Dialogue is not a “my turn on the soapbox” type of thing.

            1. 10.1.3.1.1.1

              In April 2018 you said that you suspected that Ned’s positions were “more than merely personal positions” (link to patentlyo.com).

              Could you please point to the specific evidence which has come to light in the intervening 31 months that has shifted this from a suspicion to a known fact?

              1. 10.1.3.1.1.1.1

                no.

                You are free to pick any one of my MANY other posts that provide stronger language than “suspicion” (there are many).

              2. 10.1.3.1.1.1.2

                The lurker Ben. So any statements from you Ben on whether you are a paid blogger?

                Are you going to deny it?

                1. meh, and if he denies it – so what?

                  Ben may well indeed speak ‘from the script,’ but that does not make him a paid blogger.

                  More likely than anything else, Ben is an examiner, trained back in the Dudas’ days of ‘Just say No,” and has glommed onto a L O N G diet of Malcolm patent negativity, and simply is not capable of forming any new or insightful views as to the worth of patents (or even having a patent system).

                  Note though, that he is polite to Greg ‘I Use My Real Name’ DeLassus, so in that commentator’s ‘esteemed view,’ is a ‘solid contributor’ to the many ‘dialogues‘ on these boards.

                  (so much as to the worth of politeness)

            2. 10.1.3.1.1.2

              It was funny that Ned turned against Lemley in the end and said he was highly unethical.

              1. 10.1.3.1.1.2.1

                While I do fault Ned for refusing to take conversations to their logical ends, he at least would engage on the merits of points and counterpoints at various times.

                My one regret with him is that he took his case to the courts and did not take my advice as to a better path (thereby losing his case, and leaving us all a bit worse for it).

        2. 10.1.3.2

          I am exploring the legality of paid anonymous bloggers pretending not to have to be paid bloggers in regards to FB. It looks like there are laws that are implicated and it looks like the federal government is interested in this issue.

          1. 10.1.3.2.1

            I am not seeing the “legality” issue for a forum such as this.

            Does the item you speak of ‘break the rules’ of this forum?

            Sure. I have pointed that out for years and years now (I do wonder if I can even find those ‘posted rules’ any more…).

            1. 10.1.3.2.1.1

              There are other laws involved anon. I am not prepared to speak about it right now. But a friend and I have communicated with a federal agency that has said there are laws that are implicated and that the federal government is interested in stopping the paid bloggers.

              1. 10.1.3.2.1.1.1

                ok – I would be interested in those other laws when you are prepared to speak about it.

                As you no doubt remember, I have tried to engage the ethics of advocacy by attorneys across many forms of media (including blogs). Our attorney rules on ethics SHOULD NOT BE constrained just because we are advocating in this type of fora, but as you no doubt can tell from Greg’s (and other cohorts – real names or not), playing loose with facts and knowingly misrepresenting what others have said, and what counterpoints have been presented, is nothing new.

                As I have pointed out, other blogs have put in place controls that severely limit such misrepresentations of facts, laws, and viewpoints. It is NOT as if public blogging is powerless to actually engender dynamic dialogue (and dialogue that has room for Sharp Words – need I quote John Maynard Keynes yet again?).

      4. 10.1.4

        Bueller? . . . Bueller? . . . Bueller?

    2. 10.2

      I’m never sure what to make of these comments that assert that certain opinions would never be expressed unless the authors were being paid to express them.

      The fact is that professors pretend that they are putting out scholarship when in fact they are being paid by clients to write the articles. The NY Times had an article about this that I have cited many times.

      Maybe cite it again. I don’t think I’ve seen this article, and nothing about this post rings “pretend … scholarship” to me.

      To be sure, the authors say some things that are obviously their opinions. Maybe you don’t think “explicitly advertising his district” is a fair characterization of what Judge Albright has been up to, or maybe you don’t see anything “problematic.”

      But the numbers are real, the inferences drawn from them are reasonable, and dialogue on this site would be better served if you could respond on the merits to arguments you don’t like rather than making angry, evidence-free assertions that the authors are paid shills of some kind.

      In the interest of candor, I’m inclined to agree with this post. I think it’s a bad thing when parties can judge-shop like this, and think it’s unseemly when a judge advertises to plaintiffs that it would be in their interest to have their cases in front of him. The two “reforms” proposed also seem reasonable: tie venue to the division and mandate random assignment to judges.

      If you disagree, I’d be interested in hearing the arguments. Why is it unobjectionable that plaintiffs can choose their judges in this way? Why is it unobjectionable when a judge advertises his district and tries to invite filings rather than just calling balls and strikes?

      I understand that that would require a bit more effort than evidence-free smears about paid advocacy, but speaking at least for myself I’d be interested in hearing the arguments.

      1. 10.2.1

        dcl >>I’m never sure what to make of these comments that assert that certain opinions would never be expressed unless the authors were being paid to express them.

        Strawman argument. Never said that. The issue is simple. Is the work scholarship or is it paid advocacy.

        1. 10.2.1.1

          What’s your basis for suggesting it’s paid advocacy?

          1. 10.2.1.1.1

            As an example, the NYTimes published an article about Google paying legal academics $20K to $80K to get papers published in academic journals that supported and used abstracts that Google wrote.

  5. 9

    So a specialized court with expertise in patent law that offers faster resolution to patent disputes, with due process and trial by jury. What’s the problem?

    1. 9.1

      Nothing, if the relevant parties happen to be situated out in the deserts of west TX. Otherwise, it is a venue problem.

      1. 9.1.1

        Did you mean the Hill Country of Central Texas? The deserts of West Texas are nowhere near Austin or Waco.

    2. 9.2

      Eh, judge shopping is generally considered a bad thing for legitimacy of a legal system. That’s not an especially controversial take.

      Also, in this case, its likely a number of 101 decisions are likely to be overturned after a jury trial, which means a whole whole whole bunch of money and a lot of peoples time will be wasted (including juror time, who are just regular people that have the burden of being jurors). Adding to transaction costs is also non-controversially considered a bad thing for legitimacy of a legal system.

      1. 9.2.1

        Your disrespect for the rule of law is sad.

        1. 9.2.1.1

          Maybe, or just maybe the one who disrespects the rule of law is the judge who: (i) wastes multiple citizens’ time by making them serve on a jury for a trial that the CoA determines should have been thrown out at the pleadings, and (ii) encourages practices (i.e., judge shopping) that it is widely agreed threaten legitimacy of a legal system, all in exchange for some filing fees for his flyover district?

          1. 9.2.1.1.1

            The rule of law requires a trial by jury for material disputes of fact. It also allows for standing where a Defendant has a regular and established place of business. You don’t advocate for changing those rules, but instead smear the judge for merely following them.

            1. 9.2.1.1.1.1

              The rule of law requires a trial by jury for material disputes of fact.

              Literally no other country in the world has jury trials for private law actions. Is it your contention that there is no rule of law anywhere else but the U.S. If so, why should any of the rest of us care about your silly and idiosyncratic definition of “rule of law”?

              1. 9.2.1.1.1.1.1

                That’s hilarious. You are calling the Bill of Rights silly and idiosyncratic!

                1. The “Rule of Law” with respect to patents derives, not from the Bill of Rights, but from Article 1, Section 8, Clause 8 of the Constitution where it explicitly gives Congress the power to decide the law with respect to patents. Whether you like what they have done or not, the Constitution is not ambiguous on that issue. Simply put, the “Rule of Law” for patents includes the PTAB and IPRs because Congress designed it that way in accordance with their responsibilities under the Constitution. If they had wanted to insist that all those issues were to be decided by a jury, then they could have done exactly that.

                2. Dvan, that is overly simplistic as to make it ridiculous.

                  I am not going to spend the time to explain why as every attorney knows why.

                  Just trash.

                3. Dvan,

                  You raise a fair point and on the surface, your “that’s what Congress did” might be viewed to be unassailable.

                  But see Tam (at a minimum) for things that even though Congress is the appropriate branch, they do NOT have an unfettered ability to pass anything.

                  Patents are property.

                  That has not changed.

                  Once made property, they — as property — inure other protections under the Constitution, for which, Congress is no longer writing ‘on a blank slate.’

              2. 9.2.1.1.1.1.2

                Silly Greg.

                The Rule of Law is what we follow HERE.

                Your statement of what other Sovereigns may have chosen for themselves is at best a non sequitor. More typically, it is an obfuscation of a point at hand that does not line up with your desired narrative.

              3. 9.2.1.1.1.1.3

                Greg +1

            2. 9.2.1.1.1.2

              “The rule of law” is not unique to the USA, and it is the proposition that all citizens are subject to the same law and procedures – that if you are say, the Secretary of State and you send classified emails using a personal server, and it’s illegal to do so, then you will be prosecuted just like a lower-level functionary who did the same thing would be prosecuted. “The rule of law” says nothing about a jury trial per se. It may be the case that in the USA, civil defendants are entitled to a trial by jury, but that’s not a rule of law thing.

              I am sympathetic to you with respect to the shafting you’ve gotten by the US legal system over your patents for filling balloons. But you’re wrong about what “rule of law” means.

              1. 9.2.1.1.1.2.1

                Sorry AM, but he is not, and especially in view of the feeble obfuscation offered by Greg.

                You are on the wrong side of the fence on this point.

              2. 9.2.1.1.1.2.2

                I am sympathetic to you with respect to the shafting you’ve gotten by the US legal system…

                I also sympathize with Mr Malone’s long road to justice, but I think that it is important to keep in mind that—in the end—the system worked for Mr Malone. He filed his suit and got a preliminary injunction, which the CAFC upheld. The PTAB tanked his claims in PGR, but the CAFC overturned that. In the end, the defendant settled for $31 million. Justice required more effort and capital than one might hope, but in the end the system worked and justice prevailed.

                1. … and you absolutely miss the point that most all small inventors simply do not have those same means to force the system to work, and are merely ground up as fodder for the Efficient Infringers that you ‘carry water’ for (as an example, in your ludicrous ‘we have to compromise’ position on eligibility reform).

                2. I am glad you brought that up. I am not seeking justice for myself. I am seeking justice for the thousands of other inventors who are led to believe that wealth and influence do not determine their rights in America – and the hundreds of others who have encountered that reality costing them their savings, businesses, homes, and health.

                3. I understand your and sympathize with your fight. This is literally how the entire legal system is set up in the United States. In every aspect of the legal system, wealth and influence determine the rights you have in America. There are hundreds of thousands of others who have encountered that reality costing them their savings, businesses, homes, and health

      2. 9.2.2

        Thanks, I made the same observation as in your second 8.2 paragraph above in 1.1.1.2 below at about the same time.

      3. 9.2.3

        [It’s] likely a number of 101 decisions are likely to be overturned after a jury trial…

        I am dubious of this assertion. First, as Prof R notes on the next thread of this blog, the overwhelming majority of district court verdicts are affirmed, so the odds of reversal on any given case are poor. Second, once a patent survives the 12(b)(6) challenge, the incentive to settle goes way up. By definition, a settlement will not make it to CAFC to be reversed. Mercifully, if the settlement comes quickly enough, it will not waste juror time.

        1. 9.2.3.1

          Greg, yes, if parties are forced to go to trial by denying all pre-trial motions most will settle to avoid legal expenses, and that is what many W.D. TX plaintiffs are counting on.
          But as to Fed. Cir. reversals on D.C. 101 motion denials, while the overall rate may be low, that reversal rate does not necessarily apply to a judge that has denied every single one, out of a docket that is mostly software related.

  6. 8

    “Though many reforms could help solve these problems,…”

    What problems? The fact that Judge Albright won’t invalidate under 101, and won’t stay for other non-Art. 3 fora, are features, not bugs.

    1. 8.1

      It could very well end up being worse for the plaintiffs, in that the defendants will get two bites at the invalidity apple (PTAB and trial), whereas staying for conclusion of an IPR arguably would serve as estoppel for raising invalidity issues at trial (courts have ruled different ways in terms of how broad the estoppel is). A final judgment will almost certainly not be in before conclusion of the IPR, so its really just a way to push for settlement. If IPR was going to take down a patent anyway, then holding a quick trial really doesnt solve it since youre not going to get to a final judgment before IPR concludes.

      1. 8.1.1

        Sounds like a tactical choice for plaintiffs (timing and venue). But I’m waiting to hear what’s inherently a “problem” with Judge Albright and the way he’s handling patent cases.

        1. 8.1.1.1

          I agree with Atari Man here. When I look at the five item that the authors name as “problems, they do not look all that problematic to me. Likewise, if the plaintiff wants to go down a path that may cost more in the long run, that is the plaintiff’s choice and none of our concern.

          There are two things that the authors describe, however, that genuinely do seem problematic. First, while it is unproblematic for a plaintiff to be allowed to choose a forum, it seems a bad idea that a plaintiff should also be able to choose the judge. Ideally, the assignment of which judge in a forum will hear a case should be something randomly assigned and thus unpredictable ex ante. Second, it does not quite comport with canon 1 of the model rules of judicial ethics (“[a] judge shall uphold and promote the… impartiality of the judiciary, and shall avoid… the appearance of impropriety”) when the judge travels about to address plaintiffs and make pitches that plaintiffs should come file in his court. If I were a defendant being haled into that court after such a pitch, I would reasonably wonder whether I am about to get a fair trial.

          1. 8.1.1.1.1

            Nonsense, Greg.

            Come to my court — because I treat the law in a non-anti-patent manner is not a “PRO-PLAINTIFF” view any more than would be objectively reasonable.

            Once again, there is an overwhelming LACK OF appreciation for how much the pendulum needs to swing back to EVEN GET to the ‘middle ground’ – thanks in HUGE part to the shear amount of wealth and power that those pushing Efficient Infringement have.

            Sadly, people do not seem to bother even questioning the negative state of affairs and instead think that to be some type of ‘normal’ (and thus the abnormal is presumed to be the normal).

  7. 7

    These are the same authors who don’t like the Federal Circuit either:

    “The Federal Circuit has drawn problematic distinctions between matters of law and fact in numerous areas of patent doctrine, illustrating the potentially harmful consequences of centralizing patent appeals in a single court.”

    link to chicagoip.com

    I guess because the CAFC only kills 80% of patents in randomly reasoned 101 decisions when its briefed, that’s “problematic” and somehow not quite enough for the infringer lobby

    1. 7.1

      Meh, the “single court” bleating is – as typical – put forth without consideration of WHY that single court was established.

      This is quite distinct from the separate problem as to that court having been trained by the Supreme Court in an anti-patent mode (a la the proverbial training of simians in a cage with a firehose).

    2. 7.2

      Maybe read past the introduction… there’s more going on than whether the authors “like” or “don’t like the Federal Circuit.”

      The law/fact distinction matters to a lot of issues in patent law and is slippery in practice. And the question whether there should be one or twelve or some other number of courts of appeals deciding patent cases is both old and interesting.

    3. 7.3

      J,G., few of those who think the Fed. Cir. is more anti-patent than other Circuits would be are old enough to have practiced before the Fed. Cir. existed and saw the opposite.

  8. 6

    On the question of whether Albright is a True Believer or merely preparing for the next step in his career, what sort of time frame before he leaves the bench should we use to discern between the two? Obviously if he spends of the rest of his professional life as a judge we would conclude the former… but what about 6 years? 10 years?

    1. 6.1

      Do you ask the same questions of those ‘judges’ with comfy ties to Efficient Infringers, or is that — like SAWS — something not on your radar before it does not fit your desired narrative?

      1. 6.1.1

        If I saw an article describing a judge with prior patent litigation experience who after being appointed immediately crafted local procedure to be favorable to patent defendants while promoting their district as a desirable place to transfer patent cases to- yes, absolutely.

        1. 6.1.1.1

          crafted local procedure to be favorable to patent defendants

          Please note the difference between being pro-patent and pro-individual plaintiff.

          It is not a small difference.

    2. 6.2

      How about the opposite is true. That the judges that are using 12(b)(6) to trash patent claims are the ones acting unethically.

      That Albright is merely saying in my courtroom you will get a fair shake.

      But ole Ben is always on the paid blogger’s points. Right from a script.

      1. 6.2.1

        I never said Albright was acting unethically*. And whether he is motivated by true belief in innovation or career is concerns is a completely separate issue.

        *I was surprised that his psuedo-advertising wasn’t considered problematic, but as the article gave an older example of a Penn. district judge doing similar things, I took to be fact that it isn’t actually considered problematic.

        1. 6.2.1.1

          Ben your lame attempt to cast aspirations on J. Albright when there is absolutely no reason to suspect he has this hidden motive is typical paid blogger t r a s h.

          Just your typical trashy crxp.

        2. 6.2.1.2

          [A]s the article gave an older example of a Penn. district judge doing similar things, I took to be fact that it isn’t actually considered problematic.

          I am not sure that the conclusion follows from the premise here. If a lawyer violates the ethics rules, the lawyer can be disbarred. Disbarment is not an easy process, but neither is especially hard. By contrast, no matter how flagrant the violations of judicial ethics, an Art. III judge can only be removed from office by impeachment in the House and a conviction by two-thirds of the Senate. It is so difficult to get the House and Senate to schedule time for such a vote that it is unlikely to occur. In other words, just because a judge is not punished for something does not necessarily imply that the something was permissible. There just are not many mechanisms to punish unethical behavior by Art. III judges.

    3. 6.3

      What next step in his career, Ben?

      WTF are you talking about?

      The fact is the money and the career is going to the people that trash patents because all the money is from the SV companies that literally have trillions of dollars at stake in burning down the patent system to maintain their monopolies.

      You are always so f’ing FOS Ben.

      1. 6.3.1

        I thought it was a simple question, but I’ll try to make it easier for you to read.

        Imagine a hypothetical Anti-Albright: a judge with patent experience who immediately after being appointed arranges local rules to be pro-patent-defendant, promotes his district as a good place to transfer patent cases to, and generally tends to makes decisions that favor patent defendants.

        This cretin could be a True Believer in weaker patent rights or he could be a careerist building a reputation, connections, and gratitude to be parlayed into a much more lucrative career.

        Obvious if the Anti-Albright finishes his career on the bench they would likely be a True Believer. If they jump back into private practice after 3 years, it might suggest that they were really a careerist. I’m asking where the dividing line is. After how many years of service do we interpret the Anti-Albright as being motivated by ideology rather than opportunity?

        1. 6.3.1.1

          Ben, that is always an issue the payoff by industry for favors.

          We saw that in the Obama administration with his AG not prosecuting anyone in Wall Street then getting 10’s of millions of dollars from the very same people after he left his AG job.

          But the money is going for the anti-patent people not the patent people.

          There is no reason to think that he is doing this for money if he ever resigned as a judge, which is rare.

          It is clear that since resigning as a judge is rare and that he could be tracked after he left that you are just doing this to cast asperations to his character.

          Let’s compare that with Chen who worked at Google who are the most anit-IP company that has ever existed and who was approved in the Oval Office by anti-patent corporations and who allegedly was discussing patent issues with Google inhouse attorneys while the director of the USPTO.

          Now there is reason to suspect that Chen is going these things as part of a payoff after she leaves the PTO.

          Here, there is no evidence and no reason to believe this.

          You are merely playing the game of accusing others of what you lot do.

          You are definitely a paid blogger.

          1. 6.3.1.1.1

            Let’s compare that with Chen who… allegedly was discussing patent issues with Google inhouse attorneys while the director of the USPTO.

            Now there is reason to suspect that Chen is going these things as part of a payoff after she leaves the PTO.

            You mean Lee, right? Chen is a man, and he still serves on the CAFC (i.e., he has not left government service).

          2. 6.3.1.1.2

            I am not a paid blogger. More importantly, I am not a paid commenter. More amusingly, you appear not to know the difference between the terms.

            1. 6.3.1.1.2.1

              For whatever little it’s worth, I think that it is safe to say that folks reading these comments know that you are not paid for your comments. For one thing, if you were being paid to leave comments, you would presumably do so more often.

              Really, the only participant around these parts whose slanted presentation and round-the-clock ubiquity is consistent with the idea of a paid commenter is anon. In that respect, it is a shame that his paymasters do not not check in around here from time to time to notice how little value they are getting for their money.

              1. 6.3.1.1.2.1.1

                Bite me Greg.

                I thought that you could not see my posts – and yet you seem** to know not only that I post, but that I post a lot (and that such must indicate that I am paid to post).

                Alas, when the topic first broached these pages, I was also the first to affirm that I am NOT paid to post.

                But your own tendencies have shown (in a far more abundant fashion than the number of my posts), that such actual facts will not get in the way of your desired narrative.

                And by the way, feel free to actually engage and SHOW that my ‘presentation’ is actually ‘slanted.’

                You stopped engaging me because you could not do so — and I rubbed your nose in your inability to do so. Now, you settle for your cowardly snipes.

                Maybe you should check yourself on that ‘value’ thing that you wish to impugn me with. I have most always had the better legal position than you, and certainly have most always had the better understanding of innovation than you.

              2. 6.3.1.1.2.1.2

                seem** = this reflects that what it is that you think that you know suffers substantially from your own decisions to silo your thinking and not engage those who are not polite to your desired narratives.

                Playing ‘patty-cake’ with the likes of those that push their propaganda and refuse to incorporate counter points made is simply not something that I need to do.

                Don’t like what I say? That’s perfectly fine. But deal with it in better positions instead of your hiding and sniping. As it is, your tactics only impugn you.

              3. 6.3.1.1.2.1.3

                Greg, I am sure Ben is being paid to post on here. The reason is that I am familiar with the policy sheets put out by the anti-patent crowd and Ben’s posts read like they were cut and pasted from those policy sheets.

                I admit I don’t how anon has so much time to spend on here if he isn’t getting paid, but Dennis apparently knows anon and he is just a prep and pros guy.

            2. 6.3.1.1.2.2

              Ben,

              For what it is worth, I do not think that are a paid blogger (and FYI, the term ‘paid blogger’ does encompass a person paid for making comments on a blog, so your attempted distinction has no difference).

            3. 6.3.1.1.2.3

              Ben, there is no reason to believe you. Your posts are in complete agreement with the anti-patent judicial activism of SV.

              Oh and another little slight against me that supposed I don’t know the distinction between a commenter and blogger. Always ready with the ridiculous comments Ben.

              You are definitely a paid blogger. If you work for the PTO and are anonymously on here advocating political positions, which you are, then you are breaking your employment contract.

              1. 6.3.1.1.2.3.1

                And we have the right to know who you are if you are being paid by the federal government to make these comments or if you are an employee of a company that pays you to post on here.

    4. 6.4

      This is a weird hypothetical smear of a judge. You should judge his rulings on their own merits, not by whether he does or doesn’t remain a judge for the rest of his life. Patent law can be difficult and complicated, but it’s a total cop out to resort to ad hominems like this.

      1. 6.4.1

        My question is explicitly open to the possibility that Judge Albright is totally sincere in his implementation of the law. It is not an attack on Albright, much less an ad hominem.

        I truly do not see how you can think that it’s reasonable to infer something is wrong from Albright’s numbers (Post 10.2), and subsequently think it is unreasonable to even consider the implications of future actions.

        If you think that an abbreviated career on the bench after staring up many cases should have no inferential value, why don’t you just say that?

  9. 5

    It surprises me that it is considered ethical for judges to give a presentation recommending their courtroom to prospective plantiffs.

    1. 5.1

      What ethics do you think are violated?

      1. 5.1.1

        You’re basically saying, “Hey, come be plaintiffs in my court :wink wink:”

        1. 5.1.1.1

          Not getting the ‘wink wink.’

          Is ‘plaintiffs filing cases and exercising their rights’ a bad thing?

          Now, if he was advertising results, I would get the umbrage, but that is not at point here, now is it?

        2. 5.1.1.2

          Ordinary–no.

          What he is saying is come to my court and I will give you a fair shake.

          Not like the crim’s that invalidate your claims with 12(b)(6) and don’t give you chance to contest it.

          So a judge that isn’t a crim like most of the judges now has to advertise that they are honest.

          Sad.

          1. 5.1.1.2.1

            “What he is saying is come to my court and I will give you a fair shake.”

            Bingo #2.

    2. 5.2

      It surprises me that our judicial system is still considered to be functioning given the judicial activism from the judges.

      It also surprises me that anyone can call anything written by a law professor as anything other than advocacy absent swore statements that they are not being compensated for generating the articles.

      1. 5.2.1

        I am not surprised that you would be so sensitive to potential ethical issues by one group classified antagonistic and so unconcerned by potential ethical issues by another classified friendly.

        1. 5.2.1.1

          You have yet to show an actual (or even hint of) ethical issue here, Ben.

          If YOU wanted to keep track of ‘appearances,’ then you should note the ‘appearance’ of NOT being willing to give a fair shake (as Night Writer puts it).

        2. 5.2.1.2

          Ben, I am not “so sensitive.” The fact is that professors pretend that they are putting out scholarship when in fact they are being paid by clients to write the articles. The NY Times had an article about this that I have cited many times. I guess it is the paid blogger’s amnesia that is affecting your memory.

          I would have no problem with an article like this if the author admitted upfront that they are being paid $100K to advocate by a non-profit that is funded by SV.

          So nice try Ben, but again just nonsense from you.

  10. 4

    It seems highly suspect that a judge would go around advertising for a particular type of case. I would question such a judge’s ethics. It seems like it should be conclusive evidence that the particular judge cannot be impartial on that subject matter that defendants would not get a fair trial.

    1. 4.1

      Your umbrage is unjustified from the merely type of case.

      I would ask you to check your own presumptions.

    2. 4.2

      Agree, +1

  11. 3

    “Though many reforms could help solve these problems, we focus on two.”

    Sorry, but because Judge Albright is doing nothing more than doing his level best to return sanity — and constitutionality — to patents, the only problem here . . . is that you two believe there are any “problems” at all.

    “[Judge Albright has] a normative belief that patentees have a constitutional right to have a jury decide patent validity.”

    Bingo. Because — what a surprise — all patentees do indeed have such a constitutional right.

  12. 2

    We really need to know whether this is paid advocacy or not.

    1. 2.1

      Judges lower in the pecking order of the judicial branch should have more autonomy and authority — as long as they ascribe to a pre-determined narrative.

      If they do not, then they MUST be vilified.

    2. 2.2

      WOW. I agree with you that what Judge Albright is doing is ethically suspect and raises a lot of alarms, but I don’t think you should be accusing him of paid advocacy (which would be bribery) unless you have evidence to support it

      1. 2.2.1

        You seem disconnected from Night Writer’s actual positions on both Judge Albright and on just whom the ‘paid advocacy’ angle pertains to.

  13. 1

    An overdue but thorough article on a major development in patent litigation. One judge has now advertized and obtained more patent suits than any other. Buried in this article is the fact that this judge’s near total denial of any venue transfers out of W.D.TX to more convenient forums has already been mandamused once, and that seems likely to increase.
    Also noted here is that Judge Albright consistently rules against stays for IPRs as well as such venue transfers because of his scheduling orders, which sets trial for roughly 20 months after filing even though there is no evidence that his trials actually take place that quickly. “In fact, despite the [enormously] rapidly growing number of cases in the Western District, Judge Albright has begun asserting that the time from filing to trial is now as little as 15 months.204”
    But his early scheduling of Markmans is applaudable.

    1. 1.1

      Probably too recent to make this article [this is from my September 1, 2020 comment in an earlier blog]:
      OT but important, reportedly yesterday several major companies sued the PTO Director under the APA for PTAB IPR initiation refusals allegedly based entirely on a W.D.TX judge’s proposed trial dates. Case 5:20-cv-06128 Filed 08/31/20 N.D.CA (San Jose division) [This is in addition to the previously noted recent mandamus petition by a party there on the same issue.]

      1. 1.1.1

        The proposal here of somehow “Mandating random assignment” of patent cases between the different Federal judges of an entire District is never going to fly. Too many D.C. judges do not like patent cases, or will even refuse to take them if they can, and are happy to let judges who like them take them.
        As this article itself notes [via a discussion of the history of the E.D.TX] the cure for a D.C. that is not following the patent venue statute or other requirements is sufficient numbers of Fed. Cir. reversals.

        1. 1.1.1.1

          Reading between the lines does not bring about “mandating any true random assignments” as much as it is “mandating that ANY judge who believes in strong patent rights should be knee-capped.”

          1. 1.1.1.1.1

            And here I thought that judges were supposed to be impartial arbiters of the law.

            1. 1.1.1.1.1.1

              Apotu,

              Absolutely — of course, that impartiality is recognizing the pro-patent nature of the law (and quite opposite the TYPICAL judicial anti-patent sense).

              As noted above, it appears that the larger ‘view’ of people have become SO jaded that anti-patent is looked on as ‘impartial.’

              We have NOT had a consistent true ‘impartial’ for a VERY long time.

        2. 1.1.1.2

          Re: “Judge Albright has never invalidated a patent on eligibility grounds (10 motions, 10 denials), even though many of the patents being asserted are the “do it on a computer” patents at which the Supreme Court’s Alice decision was most directly targeted.” This is not quite as great a victory against early 101 case dismissals on 12(b)(6) motions as some may think. If that is the case, several will get reversed on 101 by the Fed. Cir. on appeal, and thus several patent owners who have spent large sums fully litigating their patents will then not collect a dime.

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