For anyone looking for legislative action supporting patent holders. Let me tell you, not this year.
Rather, in a bipartisan letter Senators Tillis and Leahy have asked Chief Justice Roberts to provide a report on the “extreme” and “problematic” situation in the Western District of Texas where pro-patentee Judge Albright is hosting about 25% of all pending district court patent litigation.
No one human being, and certainly not Judge Albright, can effectively manage a load of 900 patent cases PER YEAR. Indeed, the WDTX is now using former law clerks as “special master” to preside over Markman hearings. And they make the parties pay almost $700/hour for the special master’s time. When the Court itself is routinely unable to handle its work–farming it out to private lawyers for money–that is yet another glaring sign of something gone terribly wrong. If parties wanted private lawyers for hire to handle cases, they can do arbitration.
The local Waco TX newspaper has an article about these Senator’s letters, and noting the self-admitted efforts of J. Albright to make his court a major patent litigation center. [Applauded in that article by an attorney for “Gray Reed, one of at least eight law firms that have opened offices in Waco in the past two years to take advantage of the bustling Waco patent docket.”]
Why WDTX?
Flight to quality jurisprudence, my friends.
Flight. To. Quality.
+1
You can discern the “quality” in the fact that this judge has been overturned on mandamus more times in one year than most are in an entire career.
The mandamus question is entirely distinct from quality on the merits of patent law (at topic).
But Greg is “always” polite (even as he openly dissembles…)
If “quality on the merits of patent law” [excluding patent suit venue law] is the key to your and others preemptive assumptions of judicial patent law quality by Judge Albright, on what facts do you base that assumption when none of that judge’s final decisions have yet been reviewed on the merits in any Fed. Cir. appeal decision? I.e., he may well be doing a good trial job, but there is as yet no objective proof of that. Noting again that only two of his mere six prior-noted completed Covid-era jury trial decisions reported in a law firm study were in favor of the patent owners rather than the defendants, is that your quality proof?
Paul,
That’s a fair enough question, but one simply that I need not answer, as my post was not delving into the content of the matter, but instead was merely pointing out Greg’s duplicity.
Perhaps you could ask Greg directly to vouch for his position (but you’d better be ‘polite’).
“on what facts do you base that assumption when none of that judge’s final decisions have yet been reviewed on the merits in any Fed. Cir. appeal decision?”
Paul, while the material differences between how Judge Albright operates his court vs how others do are well known and therefore do not need to be repeated here, the higher quality can be readily appreciated by how fewer actual trials have had to be conducted in his court; especially given how many suits are filed there.
Meaning that huge numbers of parties have been able to reach a resolution of their dispute . . . without necessitating all that’s involved in trials. This is a very good measure of quality.
Beside this being a great benefit to all parties, this is also one huge benefit to the entire U.S. Federal Court system. Huge.
Just imagine if these 100’s of suits had been filed across all the Federal Courts. Though one shouldn’t expect the judges in these courts to explicitly say so, it’s reasonable to expect they they are secretly thrilled that so many parties are filing their cases in Judge Albright’s court. Thrilled.
Furthermore (and especially when it comes to 101 / eligibility), since when does everyone look to the CAFC to decide which district court decisions were high quality . . . and which ones were not?
[T]he higher quality can be readily appreciated by how fewer actual trials have had to be conducted in his court; especially given how many suits are filed there.
Very few suits filed ever go to trial. That is true in literally every federal courthouse, not just Waco, TX. What evidence do we have that Judge Albright’s trial rate is appreciably lower than anyone else’s?
Also, if a judge disposed of literally all suits at the 12(b)(6) stage, would that indicate this judge to be the highest quality possible? After all, this judge would have no trials.
Re: “.. huge numbers of parties have been able to reach a resolution of their dispute” [without trials].
I had anticipated that possibility in earlier comments in complementing J.Albright’s early Markmans. But I have not yet seen any actual statistics on J. Albrights non-jury final suit disposals [either settlements or summary judgments] either as a raw number or as a percentage of his large case docket. If you have such statistics supporting your assertion it would be a relevant public service to present them here in view of this public controversy and it’s accusations of misleading proposed trial or case disposal dates.
BTW, as you know, the vast majority of patent suits in almost all District Courts get settled before trial. But there can be a huge difference in how much Defendants have to pay to so settle if the Defendant has an opportunity to challenge validity with an IPR and/or patentability with an FRCP 12(b)(6) preliminary motion.
Also, a typical pre-trial paid suit settlement only ends that suit against that one defendant. There is no validity or infringement determination and the same patent can still be asserted against anyone else.
Rah rah rah — Paul the Efficient Infringer cheerleader at the ready!
Maybe draw that conclusion about how overblown the ‘Oh N0es Tr011s’ propaganda has been…
Gene’s blog says there was a pair of these November 2 letters. The other one being by Senator Thom Tillis (R-NC) addressed to Drew Hirshfeld, performing the functions and duties of the Director of the U.S. Patent and Trademark Office (USPTO), while this one was co-written with Senator Patrick Leahy (D-VT) and addressed to Chief Justice John Roberts. [What could Drew possibly do?]
The other letter asks the PTO to study Albright’s trial dates and to consider modifying its Fintiv policy.
The letter to Drew was different in content.
See: link to ipwatchdog.com
The other letter asks the PTO to be a little more skeptical about “scheduled” trial dates in the WD Tex when applying the Fintiv analysis. According to Sen. Tillis, Judge Albright is not actually living up to his promises about speedy trial schedules.
Who knows whether Tillis is correct about that. I would be interested to see actual numbers. If true, I wonder if that will lead to folks abandoning WD Tex, or if the real attraction is not so much the trial schedule, but rather something else?
There be “numerator” and “denominator” items there.
Resolution (including those things scheduled, albeit aggressively, but avoided due to resolution) would appear to be needed to be counted as “hitting” set dates — as opposed to be being set outside of the calculus, eh Greg?
J. Albright should have been selected as the next judge on the CAFC.
Righteous idea, NW.
(Not to defend Albright, but….)
“The concentration of patent litigation is no accident.”
An amusing line given that Leahy was in the senate when it passed a law to… test concentrating patent litigation to a few self-selected judges.
Noticed that also. The patent expert judge pilot program adopted in several districts.
link…?
link to govtrack.us
Thanks – much see Leahy was not a sponsor (did not check how he voted), but there appears still a mechanism for randomization:
“did not check how he voted”
Unanimous consent in the Senate.
lol – so, when not “pressed” with an academic hit-piece, he was A-OK with concentrating judicial resources and “building a patent-specific expertise”…
Nice additions, Ben.
An amusing line given that Leahy was in the senate when it passed a law to… test concentrating patent litigation to a few self-selected judges.
A good point that I raised elsewhere. There are (many) judges who do not like patent cases. The law is arcane. The facts can be indecipherable for those not willing to put in the hard work to understand the underlying technolog(ies). This is why we’ve seen the grants of 12b6 motions to dismiss proliferating like rabbits. What judge with a degree in political science wants to learn the technology about how propeller shafts are tuned or how digital cameras work?
However, when a single judge decides that he likes patent cases (because he’s been representing patent plaintiffs and defendants for decades in private practice), there is a certain subset of individuals (mostly shills for the patent infringers) who tear out their hair in agony and scream about the unfairness of it all.
As for the 25% of cases, I think people forget that the small manufacturing facility out of Eugene Oregon or Macon Georgia or Burlington Vermont or Independence Missouri cannot be sued for patent infringement in WDTex. They don’t have sufficient contacts in WDTex to establish that WDTex is even proper for venue. Rather, who gets sued in WDTex is large, national corporations with presences throughout the country — moreover, it those corporations with significant contacts in WDTex to establish venue.
Those that are complaining about WDTex are the biggest of the big who want to be everywhere in this country in order to sell their products/services but only want to get sued in their home venue: “Hey, we are big and powerful which means we get to decide where we get sued.
What’s the point of being big and powerful if you aren’t able to use the perks that come along with it? [those perks including being able to pay off your local senator/congressman to stick up for you]
The notion that the US Patent System is the sport of kings aptly applies here. Only the big corporations of the US have the opportunity to remove themselves from Judge Albright’s court. But hey, the Googles and Metas of the world need help to maintain their obscene profit margins. It would be so 20th century for them to actually pay for the technology they’ve “borrowed.” God forbid that Zuckerberg or Brin’s cannot purchase that 500′ yacht they’ve been eyeing bearing in mind that they’ve got to top the 417′ one recently purchased by Bezos.
There are (many) judges who do not like patent cases. The law is arcane. The facts can be indecipherable for those not willing to put in the hard work to understand the underlying technolog(ies)… However, when a single judge decides that he likes patent cases (because he’s been representing patent plaintiffs and defendants for decades in private practice), there is a certain subset of individuals (mostly shills for the patent infringers) who tear out their hair in agony and scream about the unfairness of it all.
Everything you just said in laud of Albright could be equally said in laud of Stark.
Everything you just said in laud of Albright could be equally said in laud of Stark.
What did you do, swipe right on Stark’s picture one day?
Albright was a magistrate judge in the WDTex from 1992-1999 and a patent litigator until he became a district court judge in January of 2018. Aside from handling a portions of a few patent cases as a magistrate judge, Stark had no patent experience before being elevated to the bench.
Both Albright and Stark were required to fill out a “Questionnaire for Judicial Nominees.” The questionnaires for both Stark and Albright can be found online. Again, excepting for handling (portions) of a handful of patent cases as a magistrate judge, Stark’s history shows no other experience and/or interest in patent cases in particular (or intellectual proper cases in general). This stands in contrast to Albright who characterized his post-magistrate career as being devoted to patent matters. They aren’t similar in experience.
Moreover, if you show up at Stark’s court with a patent that you want to assert, there is a very strong chance that you’ll be out the door after he grants a 12b6 motion to dismiss. While I understand that this is attractive to the big corporations I spoke of earlier, it isn’t attractive to those of us who believe that the judiciary shouldn’t be the ones deciding what classes of technologies can or cannot be patented.
Greg’s being Greg.
By this time, I would be surprised if you were (genuinely) surprised otherwise.
“where pro-patentee Judge Albright is hosting about 25% of all pending district court patent litigation.”
What a fckin CHAD. May as well give him the rest of the remaining 75% and call him the patent judge of the US. lol
Well done, Senators.
Dennis maybe it’s time for you to join Hal “Tour de Farce” Wegner in Florida where you and your little fan club can continue to be on the wrong side of history in an even more hacktacular manner.
I hear there might be some openings in academia in Florida for glibertarian-curious people like you. But for sure campus PC is the worst thing ever LOL.
And thank you Malcolm for yet another fun v0m1tfest.
Yours – (subbing in for “wrong side of history Biden-is-the-best-[puppet] — since “everyone knows” a one-bucket approach to lump in Liberterians with anyone else not of the Far Left includes the likes of Joe Rogan as “Right Wing”…
It is likely NO ACCIDENT that the major driver in the letter (see the various footnotes) is an academic hit piece (some 79 pages) with the attributions of:
”
Several of these are known anti-patent academics.
I repeat my previous calls that those in academia should have HIGHER ethical requirements than practitioners, given the direct attempts to influence the law (in addition to teaching attorneys and spreading their dogma through that channel).
These comments from Billy are always the most amusing.
Watch out for those “anti-patent” professors, folks! Super scary! They operate right out in the open nowadays but for sure the worst thing ever is campus PC (or so Billy has told us all).
Did you have a point there Malcolm?
(Notwithstanding Retreads of “Billy” being SOOO entertaining
)
When the requested division has only one judge, this allows plaintiffs… effectively [to] select the judge who will hear their case. We believe this creates an appearance of impropriety which damages the federal judiciary’s reputation for the fair and equal administration of the law.
This is undeniably true. I do not say that this sort of arrangement violates any specific canon of judicial ethics, but it is simply not a good look. When a plaintiff has the ability to select not merely the forum, but the actual judge who will hear the case, it gives the appearance of slant and bias. The Chief Justice would do well to nudge the district courts to revise their local rules to eliminate the possibility of a plaintiff effectively selecting a specific judge.
Let me know when “that specific judge” is shown to violate his duty of the bench in regards to misapplication of patent law.
Pretty much all else “is simply not a good look.”
+1
Yes it sounds like we don’t like it because our constituents don’t like him.
They prefer the anti-patent judicial activists judges.
“ Let me know when “that specific judge” is shown to violate his duty of the bench in regards to misapplication of patent law.”
He seems to have some issues with determining whether venue is proper in his courtroom which he pimps out for the worst patent owners on earth.
Are you confusing the CAFC inserting their own de novo choice for the allotted discretion of the district court judge…?
My prior invitation remains open: let me know what items are necessary to defrock this “bad guy.”
But how to fix the problem? You don’t want the defendant to be able to pick the judge/jury either (I’m looking at you, Post Grant proceedings).
That said, there could be nonpartisan consensus possible here if they broaden the fix beyond “patent law” e.g., to also cover so-called lawfare cases.
I am unaware of any complaints that petitioners can effectively pick which APJs consider their petitions. In any event, I agree that a bipartisan solution should be possible if this issue becomes interesting enough for the Congress to take it up.
It’s not just that a plaintiff can pick his judge. It’s that said judge has repeatedly indicated how he would rule on certain issues that he knows will come before him in litigation. Judges aren’t supposed to do that. Defendants think that they are not getting a fair shake.
“said judge has repeatedly indicated how he would rule on certain issues that he knows will come before him in litigation”
Can you provide a link to such “indications”? I ask because this is the second time you’ve mentioned this, and the first time I went looking for some statements of prejudgement and I came up empty handed.
Actually, it was worse than empty handed. I found an interview where Albright expressly denies prejudgement, while (at least in my opinion) vaguely suggesting that maybe he’s not so open to the issue.
For example:
link to wdtxipblog.com
“MS: I understand the perception of some might be that you will not grant a motion for summary judgment.
JUDGE ALBRIGHT: Yeah, that would be a misperception. That would be a serious misperception. … I think that lawyers who are wise about how they practice in front of me would severely limit the number of motions for summary judgment they file. It is rare a motion for summary judgment is meritorious.”
I don’t think it’s fair to say that this answer indicates how he’d rule, while it also strongly suggests how he’d rule. He seems too shrewd with his statements to make a clear indication of how he’d rule. Hence my request.
Ben, in quick Google of “Judge Markman and IPR” I quickly found, for example, an NLR article saying that he has never granted an Alice-1o1 preliminary motion, and has a requirement that a Markman must be completed first. Also that “Judge Albright is also predisposed to deny motions to stay his proceedings pending a validity challenge via IPR before the PTAB. Judge Albright has publicly stated that he will not stay cases pending the outcome of an IPR absent special circumstances, since he believes that patent owners deserve jury trials in federal court and that he can “get a patent trial resolved more quickly than the PTAB can.” ” [Even though one major patent law firm has recently published a chart showing, inter alia, only six completed patent jury trials there since Covid-19 started, as noted on a prior blog.] [Litigation settlements, unlike IPRs, do not decide claim validity or provide estoppels.]
“an NLR article saying that he has never granted an Alice-1o1 preliminary motion”
Right, but this doesn’t indicate that he wouldn’t ever grant such a motion.
I guess I wasn’t disagreeing with Litig8tor so much as hoping he could point to an express indication rather than one of the numerous implicit indications.
Ben, what judge is ever going to SAY “I will not ever grant such and such a motion [or stay]”?
Given that Albright’s court takes seriously words of the Patent Act that “a patent is presumed valid (until cancelled)”…unlike what many courts (egged on by academics such as Contreras and Lemley) who chose to grant judicial notice despite this ruling…ignoring any parallel proceedings in an administrative court is actually well within his Article III judicial discretion.
Its only in the past 10 years or so that the Federal courts started to give any stays to federal cases based on cases at the PTO….and most of that was on the fiction that the PBIA/PTAB would dispose of the validity challenge within one year…something that doesn’t take into account the multiple appeals, etc. In fact, the “to-trial” timelines in East and West Texas might rival that of the PTAB (plus the resulting appeals)…which is why you have corporate infringers (and their paid stooges/politicians like Tillis/Leahy) doing everything they can to try and cripple our most efficient moving “patent” courts.
[T]he “to-trial” timelines in East and West Texas might rival that of the PTAB (plus the resulting appeals)…
Do you recall where you saw the data underlying this assertion? I would be interested to see actual numbers on this point.
The below link has time-to-trial in TX for the last year:
link to wdtxipblog.com
The serial infringers’ and their high priced lobbyists must have been complaining to Tillis and Leahy. But the honorable senators have it wrong. Judge Albright is not pro-patentee. He just likes handling patent cases and generally does so fairly and expeditiously.
eBay, Alice/101, IPRs and other so-called “reforms” have neutered patent rights to the point they are almost meaningless. I hope somebody in D.C. wakes up before the patent system is completely dead.
I would be careful of what you ask for. Justice Roberts may look dimly at the Federal Circuit’s nitpicking of Judge Albright’s handling of these petitions to transfer venue.
Stranger things have happened, to be sure, but I doubt that the CAFC needs to worry much that the SCOTUS might intervene to help patentees. There is scant precedent for that sort of thing in the SCOTUS’ recent history.
There is scant precedent for that sort of thing in the SCOTUS’ recent history.
Don’t disagree there. However, the makeup of SCOTUS has changed significantly over the past 4 years. Scalia was not friend of patents and neither was Ginsburg — two peas in a pod there. Kennedy’s concurrence in eBay showed a very distinct hostility to injunctions for prevailing patent owners. He also gave us KSR and Bilski.
Not sure where Gorsuch, Kavanaugh, and Barrett will land with regard to patent rights. However, I would be hard pressed to imagine a scenario in which they were more hostile than Scalia, Ginsburg, and Kennedy.
It’s almost painful to have to tell you this again but the percentage of people who share the views of glibertarian patent huffers like you is very very small.
Also, that’s entirely the fault of the patent huffers. Your beliefs about patents and the patent system are appalling to normal people and that’s been true for a long time.
Lol – yes being pro-patent and pro-innovation protection is SOOO not with the Liberal Left and Big Tech and the rest of the Efficient Infringers.
(Says the “not on the right side of history poopy-pants himself)
Setting aside whether there is anything wrong about a judge promoting their court, I think average Americans would be repulsed by the idea if you could actually get them to consider it. So I can’t see John Think-of-the-Courts’-Reputation Roberts looking favorably on Albright, even if the CAFC was playing loose with the standard for mandamus.
Setting aside whether there is anything wrong about a judge promoting their court, I think average Americans would be repulsed by the idea if you could actually get them to consider it.
How do you think he is promoting his court? Do you know what he is even saying?
His pitch is that he has expertise in patent law and he’ll move the case along. A quicker trial is a cheaper trial, which is good for both sides — well, except for the big corporate types who like to drag cases on for years and years and years in the hope of outspending their opponents.
As for reputation, there have been pilot programs to have specialists in the individual district courts handle patent cases — because there was an expressed desire for judges with that kind of expertise. As such, having specialist judges handle special issues is hardly unheard of. This is why we have a Federal Circuit instead of having appeals handle by the individual Federal Courts of Appeal.
The only people repulsed by the idea are the efficient infringers of the world who hate a level playing field and who have had just about every major patent decision go their way over at least the past decade if not two decades.
“The only people repulsed by the idea are the efficient infringers of the world”
Yeah, the fact that you reference “infringers” shows that you’re focusing on the particulars to a degree that blinds you to how an average American would read the situation.
Try abstracting the situation from patents. Imagine a district judge promoting his courtroom as the place to file lawsuits to a particular class of plantiff. They’ve also crafted rules that this plantiffs like so much that hundreds of lawsuits have been filed in his courtroom.
If you can imagine that and conclude that the average American would see no issue, you’re deluding yourself.
From the 10,000 ft view that the average American might cast on the Waco Division, something smells fishy. That should be apparent even to those who believe that Albright is doing everything right.
“focusing on the particulars to a degree that blinds you to how an average American would read the situation”
And you have your own “focus on particulars,” Mr. Upvote Everything From Malcolm.
There is no doubt that concentrations raise a flag worth looking into, but you draw the wrong conclusion because you don’t bother (and couldn’t comprehend) what that looking into would bring about: that being pro-innovation is NOT favoring one side of the aisle on the merits.
You are one of the absolute worsts on this blog in relation to confirmation bias.
It’s time to change the anti-patent narrative.
Look into the concentration? By all means.
But be ready to accept what that looking into provides (and that definitely means NOT using as your foundation an anti-patent academic hit piece).
I can see this, and you can see this, and I am certain that nearly every American who does not work in the patent law field can see it. Unfortunately, as Upton Sinclair observed, “[i]t is difficult to get a man to understand something when his salary depends on his not understanding it.”
Your point would be helpful to your interlocutors to understand if their minds were open to understanding. Based on historical experience, however, I expect that it will roll over them like clouds over the Santa Monica shoreline, with exactly as much impact.
You err – and err badly in your supposition that our understanding is tied to any sense of salary dependence.
My salary has ZERO such dependence.
But hey, Greg being Greg and any (unthinking) platitude will do as long as his narrative is reflected.
… and let’s not forget that Greg “I Use My Real Name” DeLassus is known to be afflicted with the very thing that he so readily accuses others of: he is of the Big Pharma- let’s make patents a Sport of Kings ilk.
(Someone politely ask him how his cognitive dissonance is coming along between his Liberal Left philosophy and the Biden support of the COVID (more than just patent) IP waiver…
I found it surprising that no indicated copy of this unusual letter complaint from two senior senators of the Senate Judiciary Committee about J. Albright of the WDTX division in Waco was sent to the Chief Judge for the Western District of Texas?
Paul, I agree 100%. I don’t see how these senators expect Justice Roberts (or the Supreme Court) to do anything about perceived forum shopping abuses. A better use of their time would have been to send a letter to the Chief Judge in the Western District of Texas (currently Orando Garcia). The district judges in W.D. Tex. could solve the judge shopping problem immediately by promulgating rules for assignment of patent cases randomly on a district-wide basis. The Northern District of California has had this practice in place since at least the late 1990s, in response to patent cases being primarily being filed in a single division and thus not being evenly divided across the district.