Texas is Big: Albright did not Abuse Discretion in Moving Case from Midland to Waco.

by Dennis Crouch

In re True Chemical Solutions, LLC (Fed. Cir. 2021)

This is another mandamus petition out of Judge Albright’s courtroom — this time denied.  The patentee True Chem filed the declaratory-judgment lawsuit against PCC in the Midland division of W.D.Tex. back in 2018, before Judge Albright joined the bench.   In 2019 the case was reassigned to Judge Albright who conducted some of the proceedings in his Waco courtroom. Texas is big — the Western District of Texas is larger than most state, and the drive from Midland to Waco is 300+ miles (both parties are from Midland/Odessa).

Judge Albright suggested to the parties that the trial may also be handled in Waco.  Although True Chem wanted a Midland jury, PCC moved to transfer the case to the Waco Division, and Judge Albright granted the motion.  A primary reason for the transfer was that Waco already had proven procedures for a socially-distanced trial.  True Chem then petition for writ of mandamus to the Federal Circuit.

Most litigation regarding venue transfer is inter-district — from one district to another district.  This case is about intra-district — from one division to another division within the same district.  Both situations are captured by 28 U.S.C. 1404(a).

For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.

Id.  In its opinion denying mandamus, the Federal Circuit noted that the law generally gives district court “broad discretion” on this issue, and the discretion is “even greater” when the transfer is intra-district.   Although the appellate court did not fully endorse Judge Albright’s decision and reasoning, it found no clear abuse of discretion.

We are not prepared to say that the district court clearly abused that discretion. The district court meaningfully analyzed the transfer factors. The court found that the more congested docket in plaintiff’s chosen forum would likely cause additional delay and prejudice to PCC, particularly given it was seeking injunctive relief. The district court further found that no non party witness resides within the Midland-Odessa Division and several non-party witnesses residing in other parts of Texas would find it significantly easier, safer, and cheaper to travel to Waco for trial. The district court added that it was unlikely that an actual physical trailer located in Midland would be an exhibit during the trial and did not foresee the opportunity for any field trips during a trial. Under these circumstances, we cannot say True Chem has established a clear and indisputable right to relief.

Slip opinion.

= = = = =

The lawsuit focuses on Performance Chemical Company’s  U.S. Patent No. 9,834,452 (“water treatment trailer”).   The complaint by True Chem seeks a declaratory judgment of non-infringement and invalidity.  The complaint walks through PCC’s use of this type of trailer going back to 2014 — three years before the application was filed.  True Chem then counterclaimed alleging infringement of the ”452 patent as well as the child; U. S. Patent 10,011,501.

I’ll note here the patent prosecution timeline.  PCC filed a provisional application in April 2017, followed by a non-provisional in July 27, 2017.  The patent issued December 5, 2017.  This is less than 4.5 months following Track One (prioritized examination).

40 thoughts on “Texas is Big: Albright did not Abuse Discretion in Moving Case from Midland to Waco.

  1. 4

    Why are so many Defendants opposed to defending themselves in Waco? Seems like they are wasting a lot more money with transfer motions and appeals than they could possibly save by transferring.

    1. 4.1

      Is that a serious question, Josh?

      It seems that only in Texas, one finds a court at least willing to approach patent matters with an eye towards 35 USC 282 (and what that entails).

      Efficient Infringers are not known for wanting that taken as a given.

    2. 4.2

      @Josh – I believe it is because patent trolls like Google and Intel and Cisco don’t want justice. They want to overwhelm the rights owner with expense and delay, to avoid having to pay for the patented technology.

  2. 3

    As an off topic but patent related topic:

    An interesting video here for people who are sometimes frustrated with examiners seeing things in references that aren’t there. Turns out, as noted at 17:40 of the vid, “we must view the psychologically healthy person not as someone who sees things as they are but as someone who sees things as he or she (or xe/xir) would like them to be”. Turns out those examiners are just psychologically healthy people. And she goes into the difference between soldier mindset (in examination this would be an examiner sending a rejection or defending such) and scout mindset (in examination this would be the examiner finding facts). She then goes into how she doesn’t think people are good at switching between soldier and scout modes of thought (seeing what you want to have be true in order to attack/defend or else/vs. accurately seeing what is true). And she also notes how overconfidence is used as a crutch but suggests trying to just go scout mode would improve outcomes in the long run. And finally she suggests how to fight bias and increase accuracy and a few other things but she doesn’t really get into specifics all that well for our contexts.

    link to youtube.com

    1. 3.1

      we must view the psychologically healthy person not as someone who sees things as they are but as someone who sees things as he or she (or xe/xir) would like them to be”

      Unadulterated pure nonsense.

      Run, don’t walk, away from that.

      1. 3.1.1

        I have to disagree with you bro. Seeing things as they truly are, so to speak, is widely understood in these psychology contexts to be very detrimental to survival in a wide variety of contexts, thus priming the primitive human, and his progeny today, to see it the way they would like it to be. We could call that “having a vision” or “having vision”. I have seen similar in the book “The case against reality” a book (or book on tape on audible) which discusses many such things, and I believe touches on this as well somewhat. He goes into why almost nothing that you perceive quote “is reality” in hard terms, and what tricks your brain is constantly pulling on you to get you to take actions to assist in your survival.

        Still further, I would hypothesize that women likely sexually selected for the ability to soldier mode (see things the way the man wanted them to be to assist in his own survival, by getting resources/outcomes etc, which then the woman gets access to through being attached to him) if not STRONGLY sexually selected for this over thousands of years. Any man that can just see things the way he wants them to be (to benefit him) will almost surely get more out of negotiations, on the whole, over the course of a lifetime it would seem to me, and women would def want that.

        In any event, I see this as a fundamental part of/basis for what I have long advocated to do when you are having a disagreement with an attorney or examiner. You’ve got to first get them to switch out of soldier mode (attacking/rejecting/formulating rejections or defending a rejection or litigation position) and into scout mode (just finding the facts, and then possibly making legal conclusions later). And this vid makes clear that doing so is hard, both I’m sure to get people to do and for people to do themselves, at least so far as she finds. This of course should also be the foundation for office policy instead of idealistic incentive structures, imo.


          YOU are not a “primitive human” are you?

          Stop listening to nonsense that only seeks to lay an excuse for ignoring the better part of humanity that drove critical thinking.

          We have MORE THAN ENOUGH justifications and rationalizations from the Liberal Left, thank you.


            “YOU are not a “primitive human” are you?”

            All of us are bruh, we’ve barely changed in 150k years. And we’ve certainly barely changed in 5-10k years.

            “Stop listening to nonsense that only seeks to lay an excuse for ignoring the better part of humanity that drove critical thinking.”

            They’re not making an excuse, if you watch the vid. She’s encouraging being more scout like in mindset, and later on in the vid she does note that the number of people that are super scout like in their thinking are few and far between. I would hypothesize myself that such is because it is, even to this day, across thousands of small/med/sometimes even large things you’re doing in a day, by far more advantageous to survival to be in soldier mode. And I would further hypothesize that there might be a requirement for added effort to be input to be in scout mode compared to soldier mode. And if you were talking about the quote, the quote is not making any excuse either, they’re finding a fact derp herp mr. critical thinking. Using mountains of evidence. They’re not saying what is, what should be, or what is excused, they’re simply stating a fact. And as to acceptable stuff at the office, this is just something that mgmt would want to incorporate into training and bring to people’s attention (as usually most examiners would try to do the right thing). Though that might all of a sudden have a req to up the ol times per app if some of you guy’s btching were to be believed.


              we’ve barely changed

              But we HAVE changed.

              You are embracing a throwing away of the best of that change: discernment and critical thinking.

              Let me repeat:

              We have MORE THAN ENOUGH justifications and rationalizations from the Liberal Left, thank you.


                “But we HAVE changed.”

                I hear your assertion bruh, and I understand what you’re talking about, but the data do not bear that out on the whole. There’s no real arguing about that. You can assert all you like, but until the data changes you’re just blowing wind out your pie hole. Most people do not go about their day to day making 1000 different decisions on day to day matters with the utmost discernment and/or critical thinking or whatever. And on the liberal/conserv or right/left breakdown I’m pretty sure that the “muh people have changed” line is the liberal line while the “muh people haven’t changed” line is the conservative line.

                1. What is this data that YOU are “blowing wind out your pie hole” with?

                  We are not talking about “most” when it comes to critical thinking and discernment (btw, THAT is part of discernment).

                2. Your last statement on the “Lib/Con” — not sure what you were trying to say there, and it is just not on point here to the aspect that Libs are active in doing right now.

                3. “What is this data that YOU are “blowing wind out your pie hole” with?”

                  If you watched the vid at the timestamp I gave for the quote it’s this Shelley lady, summarizing in her own words her paper here and see citations therein.

                  link to faculty.washington.edu

                4. “An academic self-citing”

                  Um nobody self cited. The girl giving the talk cited to an old woman who was summarizing her (the old woman) previous work which cited to hundreds of other papers.

                  Why are you ta rded bro?

    2. 3.2

      Re: “we must view the psychologically healthy person not as someone who sees things as they are but as someone who sees things as he or she (or xe/xir) would like them to be.”
      Sounds like a good description of many voters, but a recipe for costly professional disaster for many attorneys and their clients if they cannot really tell the difference.


          I don’t think (but Paul can correct me if I am in error) that his reference to voters was a positive reference.

          He may have even been taking a shot at you, given that it is recognized that you are a MAGA guy.

  3. 2

    More seriously, I don’t see a fact-specific decision like this involving an intra-district xfer for a case between actual competitors having many implications for the sort of recurring issues that arise in NPE cases where inter-district transfers are sought.

    Also, does anyone know why the case was reassigned to Albright, J. in the first place?

    1. 2.1

      Why does the identity of the owner of a negative-right property seem to influence your perception of the possible implications of the case?

      Should they?

      1. 2.1.1

        I’m not sure what you mean. There are indisputably going to be factual differences in competitor cases versus where the plaintiff is an NPE. For example, in the latter case, the plaintiff is going to have none or almost no evidence in terms of documents and/or witnesses located in the original district. I would say on average the odds of any third-party witnesses being located nearby are also low. Moreover, the plaintiff’s reputation in the district and corresponding aspect of the local interest will be minimal for an NPE. All I meant to do was refer to those clear factual differences.


            It certainly wasn’t my intention. I’m usually just focused on what are going to be the ramifications, if any, for other cases down the road.

    2. 2.2

      “Also, does anyone know why the case was reassigned to Albright, J. in the first place?”

      I was curious about this as well. The case was originally assigned to a Midland division judge named David Counts, who had it for about a year before transferring it to Albright.

      Albright was confirmed to the bench only about 8 months prior to the transfer. Perhaps it took awhile for his advertisements to reach Counts?

      1. 2.2.1

        You may very well be right about advertising. Curiosity got the better of me and I actually pulled the order from PACER. It says the reassignment was done with the two judges’ mutual consent, and pursuant to the Order Assigning the Business of the Court. In turn, the standing Amended Order Assigning the Business of the Court provides via Item XVIII(a) that any case may be reassigned pursuant to mutual consent. So I guess they can pretty much reassign cases at will except for the off chance that one judge doesn’t consent. I do note that the standing order was just amended this month on 3/8/21, whereas the reassignment order in this case was nearly two years ago on 4/26/19, but I presume the amendment didn’t make any changes to this kind of basic provision.


          Perhaps less advertising (with the presumed ill-intent) and perhaps merely the first judge does not want to do patent cases (or any other number of reasons)…

          Note, that this is NOT a leap, as Ben has several times now jumped to the “judge must be bad” view (even as he has claimed otherwise).


          fwiw, the transfer order notes:

          “On April 26, 2019, this Court was assigned this case due to its expertise in patent matters.”

    3. 2.3

      >Also, does anyone know why the case was reassigned to Albright, J.
      >in the first place?

      I don’t see why this would by suspicious in any way. It’s common in federal districts for existing judges, upon the appointment of a new judge, to assign active and pending civil cases to that new judge. It both reduces the civil caseload on the existing judges and lets the new judge hit the ground running with a full docket of civil cases. Typically it’s done by an administrative order signed by both judges.

      As to why this particular case was assigned, who knows. Most districts allow active judges to cherry-pick the civil cases to assign to the new judge. I wouldn’t be surprised if Albright encouraged his fellow judges to reassign patent cases to him, but again, there is nothing inherently wrong or suspicious about that.

      1. 2.3.1

        Not to speak for hardreaders, but I do not find the transfer “suspicious.”

        But I do find your implied characterization of expressing curiosity regarding the transfer as being suspicious to be suspicious.

        Not that I mean to imply any motive on your point by pointing that out.


          Of course – Ben finds any hint that someone might be “bad” for thinking that the judge is “bad” to — in itself — be “bad.”

          He is an examiner and likely cannot figure out that his bias is showing.

      2. 2.3.2

        Thanks for this extra background! As you can see, a little earlier I undertook a bit of my own research, which did illuminate the question somewhat. But your explanation sheds further light on it, and I agree it might have been a result of Albright, J. actively soliciting patent cases. Maybe the assigning judge didn’t particularly care for patent cases either and was happy to take him up on the offer. I do think caseload probably wasn’t a factor, given that the assigning judge, Counts, was himself appointed just a little before Albright.

        If my question had any emanations or penumbras of suspicion, that was totally unintentional. I was just genuinely curious because the CAFC decision omitted any details of the reassignment.

      3. 2.3.3

        Patent cases are regularly assigned to new judges — because most judges don’t like them. In this case there was extra incentive because Judge Albright wanted patent cases and is well versed in patent law.

  4. 1

    It’s too bad the trial won’t involve any “field trips” to see the “actual physical trailer” (I suppose getting the trailer inside a courtroom would be a logistical nightmare too). That sounds like it would have been fun. Now I’m curious as to what the trailer looks like.

    I guess having a “water cooler conversation” has a little different meaning when you work at PCC.

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