Supreme Court and Judicial Conference Considering Judge Albright’s Problematic Patent Court

The following comes from Chief Justice John Roberts’ end-of-year Report on the Federal Judiciary for 2021.

The third agenda topic I would like to highlight is an arcane but important matter of judicial administration: judicial assignment and venue for patent cases in federal trial court. Senators from both sides of the aisle have expressed concern that case assignment procedures allowing the party filing a case to select a division of a district court might, in effect, enable the plaintiff to select a particular judge to hear a case. Two important and sometimes competing values are at issue. First, the Judicial Conference has long supported the random assignment of cases and fostered the role of district judges as generalists capable of handling the full range of legal issues. But the Conference is also mindful that Congress has intentionally shaped the lower courts into districts and divisions codified by law so that litigants are served by federal judges tied to their communities. Reconciling these values is important to public confidence in the courts, and I have asked the Director of the Administrative Office, who serves as Secretary of the Judicial Conference, to put the issue before the Conference. The Committee on Court Administration and Case Management is reviewing this matter and will report back to the full Conference. This issue of judicial administration provides another good example of a matter that self-governing bodies of judges from the front lines are in the best position to study and solve—and to work in partnership with Congress in the event change in the law is necessary.

https://www.supremecourt.gov/publicinfo/year-end/2021year-endreport.pdf

 

84 thoughts on “Supreme Court and Judicial Conference Considering Judge Albright’s Problematic Patent Court

  1. 13

    Speaking of SCOTUS. The adage that once granted facts don’t matter and your case is a vessel into which policy will be poured – never truer.

    Recap of what Supreme Court justices claim as fact:

    – 99% of hospitalized are unvaccinated
    – over 100,000 children hospitalized
    – 750 million positive cases yesterday
    – vaccines stop transmission
    – Omicron deadlier than Delta
    – OSHA has broad police power

    Did I miss anything?

    2/. Some more:

    -best policy is to get vaccinated
    -“second best is to wear masks”
    -Covid is “bloodborne”
    -hospitalization growing by factor of 10
    -masks mandate is no different from vaccine mandate
    -humans are like dangerous machines spewing virus
    -forced vaccines is political policy

    3/. Also a correction:

    A bunch of folks reported that Breyer said 99% of hospitalized are unvaccinated. He said 90%.

  2. 12

    Not enough of Judge Albright’s final orders have been tested on appeal yet to be able to answer this (good) question intelligently. I predict that he will be reversed on claim construction more than the average judge. First, he doesn’t explain his reasoning so it is hard to defend it. Second, he too often goes with “plain and ordinary” meaning, without specifying what that meaning might be. Third, he lets slip through some indefinite claims (this is a smaller problem, but he is loathe to ever find indefiniteness even when it is staring him right in the face)

    1. 12.1

      Everything you have said Litig8or just supports the argument that the primary problem is that the Rule of Law has failed.

      The variance is so great in the treatment of a patent suit that it has created the venue problem.

      This is obvious to those of us that actually deal in the real world.

      1. 12.1.1

        This is what I’ve been saying for 15+ years. KSR is a case that says the fact finder can find anything obvious or not obvious according to their feelings.

        Alice means that the fact finder can find pretty much anything abstract and ineligible for patentability.

        1. 12.1.1.1

          I have no idea why a bunch of lawyers who do this for a living allow this to continue without taking them to court that are causing this. Why can’t you sue your boos, or the subsidiaries. Of course you can.

      2. 12.1.2

        Indeed, right back to the old problem when the 2nd circuit invalidated every patent, and some other circuits you had a fighting chance. It was all about getting the case into the 2nd circuit, then the patent was always invalid.

  3. 11

    “The fifth agenda topic I would like to highlight is the critically important matter of the CAFC ignoring our explicit directive to tread lightly in the eligibility analysis; instead repeatedly stomping the life out of patent-protected innovations. This was never our intention with Mayo / Alice. The Rule of Law must be restored.”

    1. 11.1

      You see a Rule of Law from the Supreme Court that is just not there, as they themselves
      F
      A
      I
      L
      E
      D
      to tread lightly, and instead created a Gordian Knot of conflicting jurisprudence.

      Pretending that the problem is only of the CAFC is just not helpful, and in fact would prevent a true long lasting solution to be developed.

      1. 11.1.1

        Correct you are my friend. But — and this is an important but — had the CAFC simply followed SCOTUS’ directive (even though it be unconstitutional), American innovation would not be in the terrible shape it is.

        We must not let the desire for the perfect be the enemy of the good.

        And in this case, the very, very good.

        1. 11.1.1.1

          Wrong yet again Pro Say.

          There is NO “simply follow” precisely because the Supreme Court F’Ed things up.

          This point has been made abundantly clear to you, and it is tiresome that you refuse to understand. If in fact the CAFC had messed up what the Supremes really wanted, do you seriously think that the Supremes would have denied cert more than 60+ times and not fire-hose d their caged simians?

          The path to redemption through the Judicial Branch will only come through the Kavanaugh Scissors or a reset by Congress (which makes the current Congressional ideological warfare game all the more infuriating).

          Of course, Congress itself has been captured by Dark Money (damm the voi€e$ of Big Corp), and needs to be cleansed.

          1. 11.1.1.1.1

            “it is tiresome that you refuse to understand. ”

            Understand I do, my friend. Hard to believe that after all this time you’d even suggest otherwise.

            But — if and until such time as SCOTUS or Congress delivers the return of eligibility for inventions regardless of field (which we both agree is needed) — the CAFC doing what SCOTUS said to do would be welcome relief to inventors and patent owners everywhere.

            The great majority of inventors and their attorneys would — as would you and yours — be thrilled over such a development.

            So please do us both a favor and discontinue this “refuse to understand” swill. You’re better than this.

            1. 11.1.1.1.1.1

              Again you miss, as the CAFC IS doing what the Supremes want.

              Hint: 60 plus certs denied.

        2. 11.1.1.2

          [H]ad the CAFC simply followed SCOTUS’ directive…

          The CAFC has, at all times since Bilski v Kappos, been following SCOTUS’ directives on §101. The cossacks work for the Czar. If SCOTUS wanted different outcomes, it has had ample opportunity to achieve them. The repeated cert. denials betokens SCOTUS’ essential satisfaction with CAFC rulings.

          1. 11.1.1.2.1

            I find it amusing that Greg posts:

            The CAFC has, at all times since Bilski v Kappos, been following SCOTUS’ directives on §101.

            as if this is some clean-cut and clear indication of understandable and easy to follow law, when the opposite remains the case and leaders from all three branches of the government have affirmatively stated that patent eligibility is a mess — and in my terms, a Gordian Knot.

            “Following” the Supreme Court does not — and in truth, cannot — bring clarity because the Supreme Court is the one that started the Gordian Knot.

            1. 11.1.1.2.1.1

              … can you say, “Void for Vagueness”….?

    2. 11.2

      I wish this wish just like you. If CJ Roberts really believed this, however, the place for such a quote would be in a dissent from denial of cert., not in the year-end judiciary report.

  4. 10

    Probably about time to think about impeaching some of these judges who think they were put on the bench to service glibertarian waste piles and fascists (and yes there are tons of them in Texas — go figure).

    1. 10.1

      But Malcolm, you seem fully ready to keep those that serve your own Desired Ends (no matter the Means), eh?

      You sir ARE the problem.

    2. 10.2

      That’s the problem with having no laws. You see the judge can then do whatever they want.

      Maybe Roberts should focus on the cause of the variance in outcomes and thus the importance of the judge selection.

      1. 10.2.1

        Night Writer,

        Malcolm WANTS what Roberts has unleashed (as long as it is the Ends that Malcolm wants reached). He just does not see the problem that you have presented.

  5. 9

    Tough one but is this unique to patent cases? And is this unique to WD Texas?

    I don’t think so.

    I think it is a tribute to the scale of the problems in patent law that this is happening and that the real problem is the inconsistencies in patent law that were largely created by the Scotus. The Scotus has–in effect–created a system of patent law where there is no law but the opinion of the monarch–the judge–determines the validity of your patent under Alice and under KSR.

    So–Roberts you f’ing joke–this is what always happens when the Rule of Law is broken. You get a huge variance in how cases are treated when the judge doesn’t have any laws to worry and can just do whatever he or she feels like.

    1. 9.1

      The Scotus has turned into a f’ing joke. A tragic one for the USA.

    2. 9.2

      Which is a bigger problem:

      That SCOTUS won’t own what they themselves in no small part help create.

      Or

      That the legal community (including — especially — academia, as well as the Efficient Infringer cabal) refuse to see the situation as anything but “there’s a judge out there who will be objective to the actual dictates of patent law including recognizing the presence and level of the presumption of validity” and THAT “must be bad” because it does not hew to the desired narrative.

      1. 9.2.1

        What I find most disturbing is that we have switched to a system without laws where people try to determine the outcome by mob rule.

        1. 9.2.1.1

          Is it “mob rule” or rather “the Ends justify the Means” coupled with just how those Ends are controlled by those who just do not value innovation appropriately?

      2. 9.2.2

        obviously you have not been actually exposed to how judge albright runs his court. He doesn’t even issue Markman opinions – he just says what the terms mean without explanation. He rules on lots of motions with no opinion either, often just one word “denied.” If he is too busy to do his job, some of those cases should be transferred. In any event, even if he was the best judge ever (he’s not), a plaintiff shouldn’t be allowed to *pick* the judge.

        1. 9.2.2.1

          Obviously you have no real world experience. The demand for a particularly judge is strongly related to the variance that the law permits in the decisions. This problem is created by KSR/Alice.

        2. 9.2.2.2

          In any event, even if he was the best judge ever (he’s not), a plaintiff shouldn’t be allowed to *pick* the judge.

          Simple and direct question: why not?

          IF it is a matter that the judge is NOT fair, should not there be other mechanisms that may control any such unfairness?

          In such a very specialized environment, does randomization even make sense?

          I continue to hear the bleating of “Thou Shalt Not Pick,” but I have yet to see the cognitive reasoning and the weighing of that reasoning in the very specific context of patent law.

          1. 9.2.2.2.1

            Yup anon, it is crazy.

            It is funny but, you know, this always comes with the far left policies and corruption. They create imbalances and then they try draconian measures to keep people within their bounds.

            Funny but it always works out like that with the far left. I think it is because they just don’t respect markets and creating incentives that drive people. Just sad.

            And here this sad lot just can’t see that they have created the problem. If patent laws were anywhere near being rules of law and not rules of a sovereign, then we would not see one judge stand out so.

            1. 9.2.2.2.1.1

              Agreed — the Supreme Court aversion to bright lines (due in no small part to their own finger in the wax nose of patent law addiction) creates this consequence.

  6. 8

    Roberts left one off:

    “The fourth agenda topic I would like to highlight is the important matter of judicial administration: judicial assignment and venue for patent cases in federal trial court. Specifically, why the Northern Dist of CA invalidates patents at a far higher rate than any other Court. This is bad for American innovation and must be stopped.”

    1. 8.1

      Add in the whole IPR process, too.

      I think we can agree that all forms of “forum shopping” of look bad… not just to wrt Judge Albright

      1. 8.1.1

        When/where is there NOT forum shopping (by either side)?

        What is disingenuous here is that one side insist on pretending that forum shopping “is the bad” while what they are doing is the very same thing.

        1. 8.1.1.1

          Patent law seems to have a particular vulnerability to it e.g., this was one of the major reasons they created the Federal Circuit.

          As to why? Hard to say….Big $ cases? Nationwide injunctions? Lots of issues de facto decided by Judges (vs. juries)?

          1. 8.1.1.1.1

            Historically, both patent law and admiralty law were well recognized legal specialties.
            The Fed. Cir. was set up to take over appeals from the PTO formerly handled by the CCPA [plus some other local Federal agency appeals], and since patent litigation has some of the same issues and statutes they were also given exclusive appeals of D.C. patent decisions as well, as well as to reduce intra-circuit patent law conflicts.
            But the Sup. Ct. has already stepped in several times when Fed. Cir. decisions had attempted to judicially set up special legal rules for patent cases that the Sup. Ct. found inconsistent with general legal rules: injunctions, attorney disbarments, TSM, etc. [Some contract-employment agreement cases may be ripe for another such cert grant.]

            1. 8.1.1.1.1.1

              TORNADO ALERT

              Paul, your spin on the reason the Supreme Court steps in is making me dizzy.

              (and don’t even get me started on the equitable foundations related to injunctions and what the nature of the patent right is — you’ve run away from that far too many times)

  7. 7

    Those arguing below for assignments of patent suits to certain judges, rather than randomly, may not be aware that we had such a system for 10 years in some districts, that ended July 4 2021. Congress created the “Patent Pilot Program” in 2011 with the goal of enhancing judges’ expertise in the complexities of patent litigation. In 13 voluntarily participating district courts, 59 judges who expressed an interest in patent cases retained those that were assigned to them, while other judges could decide
    either to keep patent cases or send them to a pilot program judge. Judges gave it mixed reviews.

    1. 7.1

      I would be surprised if folks were unaware of that pilot program. As you say, it only recently came to an end.

      The idea of selecting a few judges in each district to be the designated “patent” judges is definitely not what I advocate. I think that there should be a designated court (probably in D.C., although Detroit or K.C. would actually make more sense) specifically for patent cases. The judges for this court would—by statutory stipulation—be chosen only from those admitted to practice before the USPTO and a least one U.S. state bar, so that all the judges would have a science-oriented education and a form of legal training.

      Ideally, the Congress would hive the PTAB off of the USPTO and turn it into an Art. III court to institute this special district court. In that respect, it would be much like the way that Congress created the Art. III Court of Customs & Patent Appeals out of the prior administrative tribunal for customs appeals.

      1. 7.1.1

        Smeg Molasses thinks “science-oriented training” is important for … 21st century patent judges. That’s pretty funny considering the patents on “apply old logic to data in this non-technical field” that the PTO has been preferentially cranking out for the past 25 years. And funnier still given that Smeg never stops complaining about the Supreme Court cases which prevent tons of even LESS “science-oriented” patents from issuing.

        1. 7.1.1.1

          You do realize that you conflated “science” and “technology” in your critique of Greg, right?

    2. 7.2

      Hmmm,

      Let’s see

      Those arguing below for assignments of patent suits to certain judges, rather than randomly, may not be aware that…

      It is LESS “arguing for” and MORE simply noting that the “expressed audacity” at NOT having some random assignment makes little sense when looking at the special nature of patent law.

      These are two different positions, Paul.

      That being said, I would be interested in any of an actual source of review on the program that you mention, and why it was shuttered (seeing as it may have been shuddered for reasons entirely outside of the program itself).

  8. 6

    Hopefully the Administrative Conference and Justice Roberts will recognize that Judges like Gilstrap and Albright and Stark are a benefit to the justice system. Way better to have independent Article III judges who are willing and capable to adjudicate legal disputes involving technology, than for a political court of bureaucrats short-circuiting due process to help big tech increase their monopoly power.

    1. 6.1

      It seems like having specialized patent judges is a policy matter for Congress to decide – much as they did when creating the Federal Circuit.

      1. 6.1.1

        Apotu,

        Not so sure that such need impugn a judge under the current system from leveraging their experience and know-how.

        seems like having specialized patent judges is a policy matter for Congress to decide

        Meh,
        As I have noted throughout – let’s see the affirmative wrong doing being explained, as opposed to all of the whining about something merely not liked.

  9. 5

    I just found out Stowe is in private practice. so why is google still hiding him on the wall claiming he is still the DA?

    1. 5.1

      as much as i hate trump, he could use all of this. I have to do something. SO SORRY

    2. 5.2

      He had a responsibility to his JOB and Oath to the Tennessee Constitution. It does not say he can cherry pick.

      1. 5.2.1

        So because google built a wall, and finding it on 1/1/22 I think that is the beginning of my federal crime statute against him and the county which includes most of TN. When the deputies told me I was dead, I realize now that it is what Matt and Smith told them to assume. Guess what I ain’t

  10. 4

    First the Eastern District of Texas and now Judge Albright adopted an approach to handle patent cases quickly and relatively inexpensively. By doing so, they responded to the needs of their customers/stakeholders, the parties who use the court system to seek justice.

    Apparently the court system does not approve of such innovation. Apparently, the court system don’t like to be made to look unresponsive and inefficient.

    Thus, the rules will be changed to ensure such innovation does not succeed and to impose inefficient mediocrity across the board.

    Happy 2022.

    1. 4.1

      customers/stakeholders, the parties who use the court system to seek justice

      Because the accused aren’t stakeholders and fighting off non-meritorious lawsuits is not “justice”

      I get it.

      1. 4.1.1

        You missed the operative word “seek,” and the relation of that word to the party that actually files the suit.

        But you were in too much of a hurry to notice that.

        1. 4.1.1.1

          You are in too big of a hurry to notice that stakeholders is the subject, and justice is the object, and ignoring defendants as stakeholders is a typical expression of the mindset of patent extremists, as well as the moro nic idea that one accused would not be seeking justice as a result of the complaint.

          1. 4.1.1.1.1

            None of your counters actually fit my post.

            Maybe actually read the words I used as opposed to some arguments that I did not make.

  11. 3

    Re this being “..a matter that self-governing bodies of judges from the front lines are in the best position to study and solve – ” Which “self-governing bodies of judges” is he referring to? The “Circuit Judicial Councils” the “Administrative Office of the U.S. Courts” [to whom the 2 Senators letter was sent], or something else?

    1. 3.1

      Here’s what the Federal Courts website says about “Circuit Judicial Councils,” since it was news to me:
      “At the regional level, a circuit judicial council in each geographic circuit oversees the administration of courts located in that circuit. The chief circuit judge serves as chair, while an equal number of other circuit and district judges comprise the judicial council.
      Judicial councils oversee certain aspects of appeals and district court operations. The council has broad authority with a statutory authorization to issue orders to promote accountability and “the effective and expeditious administration of justice within its circuit.” The Judicial Council also reviews local court rules for consistency with national rules of procedure. It approves district court plans on topics such as equal employment opportunity and jury selection, and reviewing complaints of judicial misconduct. Each judicial council appoints a circuit executive who works closely with the chief circuit judge to coordinate a wide range of administrative matters in the circuit.”

  12. 2

    The solution here is fairly simple. It would not require much effort to create a scheme for random assignment of trial judges throughout the whole WD Tex.

    1. 2.1

      You talk about the “solution.” However, perhaps you are focusing on the wrong problem.

      What about the problem of many District Court judges who don’t like patent cases and take that out on the party bringing the case (i.e., the patent owner)?
      What about the problem of many District Court judges not understanding the arcane laws involving patents?
      What about the problem that it takes FOREVER to litigate a patent case in many/most jurisdictions?

      the Judicial Conference has long … fostered the role of district judges as generalists capable of handling the full range of legal issues
      That’s nice, but if one is diagnosed with liver cancer, they aren’t going to see their family doctor (i.e., a generalist), they are going to see an oncologist. If one gets a threatening letter from the IRS, they aren’t going to go down to the local HR Block office for help. Rather, they are going to seek out a CPA/tax attorney. If I have a patent that I think is being infringer, I’m not going to call the local slip and fall attorney to try the case.

      It is unhelpful to have generalists on the bench when there are specialists trying a case because the legal issues involved require specialists.

      Patent owners looking to assert their patents are flocking to the WDTex (and let’s not forget the EDTex) because they think they will have competent judges handling the cases. Being in the WDTex and EDTex doesn’t mean an automatic win for patent owners. However, it does mean that it won’t be an automatic loss [ahem, ND … cough … Cal] either.

      1. 2.1.1

        Even worse, Greg’s “easy solution” itself violates one of the edicts of Justice Roberts:

        also mindful that Congress has intentionally shaped the lower courts into districts and divisions codified by law so that litigants are served by federal judges tied to their communities.

        As typical, Greg only sees that which serves to support his desired narrative.

        1. 2.1.1.1

          The “tied to their communities” in that quote refers to the “litigants.” That is, the communities of the real patent owners and the real defendant corporations, not shell corporations set up there solely to get the suit tried there.

          1. 2.1.1.1.1

            the real defendant corporations
            You mean those defendant corporations that sell products/services in every jurisdiction in the country but want to have the case tried in their home jurisdiction because of the home cooking?

            1. 2.1.1.1.1.1

              Funny isn’t it? No one (from the Efficient Infringer camps) wants to acknowledge that…

          2. 2.1.1.1.2

            Paul,

            Do you realize the tone you take paints you as a mouthpiece for the Efficient Infringers?

            That is, the communities of the real patent owners and the real defendant corporations, not shell corporations set up there solely to get the suit tried there.

            I think that you are barking up the wrong tree with your attempted insinuation on “shell corporations.” Your use of “real” plays to the “Oh N0es, Tr011s” boogeyman propaganda.

            That being said, if instead you want to approach this as suggesting that ALL shell corporations be outlawed as a GENERAL reform within business law, then you have my attention (and — you may be shocked — my likely support).

          3. 2.1.1.1.3

            The “real communities” that Albright is servicing are the communities of toxic waste Texas attorneys who believe, e.g., that Orange Julius Caesar had the election stolen from him.

            1. 2.1.1.1.3.1

              …?

              Where does this non-sequitur insertion of OMB-TDS come from?

            2. 2.1.1.1.3.2

              I like “Emperor Tang” as a reference to our next President

              1. 2.1.1.1.3.2.1

                … our next?

                Shudder the thought.

                (and what is your moniker for the current President, if I may ask)

          4. 2.1.1.1.4

            What is this “tied to the communities” language supposed to mean, anyway? Judge Albright is headquartered in the Waco division, but he routinely transfers cases to the Austin division, and continues to oversee them there. If “tied to the community” means that the judge resides in the same town as the courthouse where the trial happens, then clearly these trials are already lacking in “ties to the community.” If, on the other hand, the “community” is construed more broadly, such that “tied to the communities” merely means that the judge resides in the same district (where Austin, San Antonio, & Waco are all one “community”) where the trial happens, then there is no contravention of “tied to the community” value in simply assigning judges randomly to trials within the WD Tex.

      2. 2.1.2

        I also have to wonder how exactly “random” assignments breed accountability of the system. To me, such actually would serve to obfuscate accountability with a ready-made excuse of “well the system just randomly assigned the case (needing a specialist) to just any judge (regardless of Having that speciality) in the system.

        As I noted at the end of last year, would love to have those who cheerlead actually engage on point to the full conversation points that are presented, and not just reiterate their own speaking points.

      3. 2.1.3

        [P]erhaps you are focusing on the wrong problem… What about the problem of many District Court judges not understanding the arcane laws involving patents?

        I do not see that there is a “right” problem or a “wrong” problem on which to focus. The problem to which my #2 refers is the problem to which the Chief Justice’s remarks are addressed. I was merely responding to his writing.

        I can emphatically agree with you that generalist district judges are a problem in patent cases. I favor the creation of a specialized set of district courts to handle patent cases, just as there is a specialized appeals court for such cases.

        Naturally, however, the suggestion that I mentioned in #2 is something that the Chief Justice can effect right now, on his own initiative. The creation of specialized district courts, by contrast, requires Congressional action. Given that the two solutions are not mutually exclusive, there is no reason why the judiciary should not move forward with the #2 scheme, separately and apart from any solutions to the problems that you discuss in #2.1.

        1. 2.1.3.1

          You don’t see…

          Of course not. But your not seeing is by your choice, and thus your self-induced lack of knowledge cannot serve as an excuse.

      4. 2.1.4

        Wt,

        Your statement of “ Being in the WDTex and EDTex doesn’t mean an automatic win for patent owners. However, it does mean that it won’t be an automatic loss [ahem, ND … cough … Cal] either.” provides the key — and reflects what I have posted on this topic: some (notably the Efficient Infringer cheerleading types) do appear to think that a “non-automatic loss” IS a de facto patent holder win. Now if there were clearly illegal actions for patent holders, THOSE items would make up legitimate and specific complaints (that I keep on asking to see — and which no answers ever seem to be forthcoming).

        Instead, lots of dust kicking about things merely not liked.

        1. 2.1.4.1

          There are ample “legitimate and specific complaints” of Waco patent venue statute violations, sustained in uniquely ample Fed. Cir. mandamus decisions, and amply reported on prior blogs last year. As also noted, until J. Albrights cases that do get tried, or decided on summary judgments, and thus make it up to the Fed. Cir., there is no way to argue actual end result track records on other legal issues. [Two [unusual] preliminary injunctions of his may make it there soon?]
          But as for Fintiv type denials of IPRs in Waco patent lawsuits based primarily on unrealistic advanced-announced trial dates, that is really a PTAB problem, apparently already being addressed by the PTO.
          As for NDCA allegedly being a patent suit death trap, I have not seen any actual comparative statistics, pre-trial or post-trial. But I assume the local rules there for patent cases, requiring patent owners to actually identify fairly early-on what products are actually infringed by what claims, rather than vague infringement assertions, does put a crimp in many PAE patent suits.

          1. 2.1.4.1.1

            I call BS.

            The “ample” have been merely assertions for changes to venue (which do NOT speak of illegal actions by the judge at point.

            No Paul, you need to show things that rise to sanctions, disbarment or worse. The “not liking” category is expressly not the level you need to show.

            As to timing of trial dates, meh, I have already refuted that point — and you did not respond on point back then. Merely repeating that which I debunked gets you no points. (in short, the scheduling of timing is NOT skewed for patent cases and ALL scheduling would be ‘suspect’ to your (unsubstantiated) claims)

            And while it was Wt’s point about another district, I am more than sure that he will not be accepting your attempted “Oh N0es Tr011s” attempt at spin.

            Try again, this time without the Efficient Infringer pom poms.

            1. 2.1.4.1.1.1

              … and I would also add that at point the CAFC Crusade is not an independent view, given as their actions are merely that court substituting its desired Ends — as has been explained to you by Wt.

      5. 2.1.5

        Patent owners looking to assert their patents are flocking to the WDTex… because they think… that it won’t be an automatic loss [ahem, ND … cough … Cal]…

        Does ND Cal or WD Tex have the higher rate of reversal on appeal?

        1. 2.1.5.1

          Not enough of Judge Albright’s final orders have been tested on appeal yet to be able to answer this (good) question intelligently. I predict that he will be reversed on claim construction more than the average judge. First, he doesn’t explain his reasoning so it is hard to defend it. Second, he too often goes with “plain and ordinary” meaning, without specifying what that meaning might be. Third, he lets slip through some indefinite claims (this is a smaller problem, but he is loathe to ever find indefiniteness even when it is staring him right in the face)

          1. 2.1.5.1.1

            I was not talking about Judge Albright specifically. He is not the only judge in the WD Tex. Surely we can already compare the reversal and affirmance rates of ND Cal & WD Tex over the last ten years (or whatever time window seems relevant).

            1. 2.1.5.1.1.1

              Before Albright the WDTX was getting ~50 cases a year total (compared to ~250 for NDCA). I don’t have the appeal stats but assuming that most cases settle or are not appealed, it still might be misleading to compare those 2 courts. Now that Judge Albright is on the scene, there are going to be MANY appeals from the WDTX (another reason that the historical data is not particularly relevant now since Albright has 99% of all the WDTX cases). Anyway, still a good question and maybe someone can chime in.

              1. 2.1.5.1.1.1.1

                Good points all. Thanks for that.

              2. 2.1.5.1.1.1.2

                The linked article discusses the ED Tex, not the WD Tex, relative to the ND Cal, so not quite on point, but interesting nevertheless.

                link to scholar.smu.edu

        2. 2.1.5.2

          Greg, per the comparative table in the Baylor TX law review article one commentator had hotlinked slightly earlier, ND CA has a below-average Fed. Cir. reversal rate, with 65.3% of its decisions fully sustained on appeal as of 2020. [WD TX was not listed in that table, unlike ED TX, presumably because WD TX was one of many Districts not having enough of its patent cases making it to the Fed. Cir. for valid statistical comparisons.]

  13. 1

    Neither of the two drivers mentioned by Roberts have to do with the notion that Albright is “problematic.”

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