6 Apr

Judge Albright explains why he has made WDTX a beacon for patent cases

Since Judge Alan D Albright was appointed in the Western District of Texas in 2018, his docket has quickly become dominated by patent suits. The former trial lawyer let it be known early in his tenure that he was keen to hear such cases and with the Supreme Court’s 2017 decision in TC Heartland changing rules around venue, plaintiffs have been flocking to WDTX. As a result, he and his court have become of central importance in the US IP market.

Although based in the Waco division, Albright travels back and forth between there and Texas’s emerging tech centre and state capital Austin. Last week I interviewed the judge. We covered a broad range of subjects, including: how he is responding to the covid-19 pandemic; his passion for patent law; why he’s reluctant to stay cases pending a PTAB decision; and why he doesn’t want his district to be seen as a plaintiffs’ paradise.

It is still early in his tenure - Albright is yet to have his first jury trial in a patent case - but it seems certain that he is going to remain a central figure in US IP for some years to come.

What follows is Part One of our interview. Part Two will run tomorrow.    

RL:      I’d like to start with covid-19 - how are you responding and how are you seeing parties involved in cases before you respond in light of the outbreak?

JA:      So far, we are doing everything by teleconference. I am not at all opposed to trying to do it by video instead if we could. Districtwide we are not going to have any in-person hearings for civil cases until 1st May. I have continued to conduct all of my motion and discovery hearings by phone and I’ll have my first Markman hearing by phone this coming Friday [3rd April] and, hopefully, it will be the guinea pig as to whether or not I think it is really fair to the parties to do it that way as opposed to some other way.

From what you have seen so far, and I know it is only a matter of days, have those teleconferences gone smoothly? What’s your advice to counsel who might be used to appearing in person?

In person, I am a very interactive judge and I ask questions. It is harder to do that [by teleconference]. And if I have any advice for counsel: if ungoverned, lawyers will pretty much talk as long as I don't tell them to stop; and I think when you are in person, you have a much better way of gauging when the other person has pretty much heard as much as they care to; but when it is just silence on the phone and you have prepared all of this stuff that you want to say, people tend to just go ahead and say it. So, having done several of those hearings now, I will try and gently interrupt them and say, "I think I've got this one and you can move on."

Overall, in terms of handling it, it has gone just fine. We are in pretty good shape technologically to [hold teleconferences] but I really am trying to figure out a way, maybe with Zoom or something else, where we could do videoconferences because I think that would improve it for the attorneys.

Would you do that, sort of, districtwide?

In our district, it is like herding cats. I would not even suggest to other judges how they would want to do their courts. That would just be for my court. However, you know, we are all pretty good friends and if someone comes up with something that works for them, they spread that news. We've got several different group texts that are made up of judges and if something happens, good or bad, we tend to keep everyone else apprised of that within that little text network. It is great for camaraderie and there are few people who we can go to for advice so we tend to try and get it from each other.

One of the things that is very clear is your enthusiasm for patent law. Where did that enthusiasm come from?

When I was a magistrate judge in Austin in the ‘90s I had the great fortune of really wanting to take whatever cases came along. The Patent Bar found that I was more enthusiastic than the other district judges and other magistrate judges, and I would get Markman hearings to handle and would get to try patent cases. And I thought, “man, these are great lawyers, they are super smart, the technologies are interesting, the questions are interesting”, and I thought, if I am smart enough – and I wasn't sure I was – to go in and be able to learn the technologies and learn the law and then combine that with trial skills, I could probably do pretty well at this. And that proved to be true for 20 years.

I really, really enjoyed trying patent cases. I met the people who invented MP3, the inventor that invented the encryption that allows Amazon to work—I got to meet just these enormously wonderful, bright people and these great companies. And then, when I had the opportunity to try and get this position, I thought, “if people who were practising patent law knew they had someone that they could go to who was starting at a little bit of a higher level in terms of understanding things then that would be helpful”.

So, I have the enthusiasm, I like lots of the lawyers, I like a lot of the clients, I like the people on both sides. I don't know if it is exactly one for one, but I tried about as many cases for plaintiffs as I did for defendants.

After doing this for a year and a half, I have literally had only one time where the lawyers called and at the end of it, I thought, man, that was like dealing with two 10-year-olds. I forget what it was. It was pretty silly. But, you know, one out of 40 or 50 hearings, that is a pretty good ratio. So, you know, I feel like it is just a great way of doing it and I think the lawyers appreciate having just virtually 24-hour access to the court.

There is a sense that some federal judges don't like patent cases. Obviously, that is not across the board but do you think your colleagues say, “oh, thank goodness you are here, you can take these patent cases off our plate and now we know where to send them”?

My sense is that if you are a judge who only gets a small handful of patent cases, then you never really feel comfortable with them. If you have five patent cases and 300 other civil cases, the five patent cases take a lot in terms of your energy. You have a Markman hearing, that is kind of a big deal to get ready for. You have to draft the Markman order, you get Daubert motions, you get all of this stuff.

The fun thing for me is that when I get a Daubert challenge in, I don't need to go look up, say, the Georgia-Pacific factors. I can read a Daubert challenge and very quickly assess whether I think it is well-taken or not, and I think that is much harder for a judge who has fewer patent cases to ever feel that comfortable.

Was it always your ambition to be a federal judge?

I clerked when I got out of law school but I don't think I had the ambition at all until I was fortunate enough to become a magistrate judge. Then I certainly thought it would be a great and wonderful thing to do. I applied for the Austin position that Judge Yeakel got in 2003 and I didn't get it, and, after that, I didn't ever really think about it again. I was very, very happy practising law - I really loved the firm I was at, I loved the work I was doing and the clients I had.

But when I saw in the news in September 2016 that Judge Smith in Waco had retired, I immediately reached out to the Texas senators, their judiciary staff, and let them know that I would be interested in the position. And, yes, I very much wanted to become a federal judge once I realised what a wonderful opportunity it would be. At the time, this was pre [the Supreme Court’s decision in] TC Heartland, you got the feeling that the Eastern District, and Delaware and, to a slightly lesser extent, the Northern District of California were drowning in patent cases. And so, my sense was that if I could get this position, I just saw myself as, like, a safety valve; you know, where fewer people would have to file in Delaware or elsewhere because there would be one more venue that they felt comfortable in. And so, that enormously excited me.

And you let it be known quite early on that you were willing to take patent cases. Was that always your intention?

Oh, yes. Well, here is the deal, and I have had some people who have made comments about judges promoting themselves, but, you know, all I've ever done is let people know that it was what I was planning to do and I hoped that the Patent Bar would think that was a good idea. 

Since then, I have tried to continue to extensively attend different CLE events. The Eastern District, for example, has a bench and bar conference where you can meet other people who are practising in federal court, socialise and meet with the federal judges, and hear from them about how their court functions.

We don't have that in the Western District and I don't anticipate us having it. So, I think it is important for me to go and attend these judges' panels and other events where the lawyers can say, “how do you do things and why?”. And, again, my overwhelming goal remains to be just be one of the options for people to consider.

I know several of the judges in Delaware well and they are amazingly good judges; the judges in the Eastern District of Texas are amazingly good judges. I've only met a few of the judges in California but obviously, they've got a wonderful reputation. I just see myself as being an alternative for people to the other venues that have done a lot of patent cases.

So, one of the things you did early on was set up a procedures committee which I believe is still in place; but what was your thinking behind setting that up originally and why keep it going? What do you continue to get from it?

Boy, I'd like to tell you it was some brilliant idea on my part, but I think it is one of those things that, in hindsight, has turned out to be a brilliant idea. When I was practising I could give you a list of things that I really liked that judges did and things I really disliked that judges did.

So, basically, my intent was to come up with a default, that was the most fair and neutral to every kind of lawyer that is handling a patent case. For example, you know, a big firm like a Kirkland & Ellis or DLA Piper; or a big plaintiff's firm like Sussman Godfrey or a smaller one. The committee is completely open to everybody, anyone can join. We have a lunch about four times a year and everyone is invited to attend in person or they can dial-in by phone. Really it was about my desire to come up with a system that had the most buy-in from the most lawyers.

One of the wonderful things about the Eastern District, for example, is that when you represent a client in a case filed there, you pretty much know within certain parameters exactly how the case will go and you can advise your clients and clients become comfortable with it.

So, I wanted to have a system where, if Company X got sued, their lawyer would be able to give them as much advice as possible about how things were going to work. And where we’re at right now is if a case gets filed in Waco and, let's say, it has three defendants, once the issue has been joined and it is ready to move forward, really all the parties have to do is come up with an agreement of when they want the Markman hearing and then everything else just sort of flows prior to that and after that.

At my scheduling conferences I have found that that where I wind up efficiently using my time at scheduling conferences is with resolving the issues that are tailored to a specific case. Then, once we get those done, then everything else is kind of on automatic and you know, for example, that there is not going to be discovery or, at least, not much discovery until the Markman hearing. So, for budgeting purposes, both sides can figure that out. Again, I have tried to make everything I was doing as predictable for every party as possible.

Will you keep that committee in place going forward?

Oh, forever. And, like I said, anyone in America can join it and be included on everything that takes place.

How do you continue to manage your patent caseload and, as it grows, how do you see your case management evolving?

Well, fortunately, I am really brilliant. No, I'm kidding. So, it may be a longer answer than you want but, for example, I have a law clerk that has a strong technical background and I have been able to extend his clerkship and I am going to be working to see if I can get the Fifth Circuit to add another clerk on for me. And one thing that we have done, for example, is in the Waco Division, if a civil case is filed and it is an intellectual property case, it comes to my docket directly. If it is not, it goes directly to the magistrate docket.

My chambers isn't 100% patent cases but I have one clerk who is dedicated to patent stuff and the rest of my clerks work on patent stuff and non-patent, non-IP cases. I don't have a lot of non-patent IP stuff, but all of that is then kind of divided up between the magistrate, the magistrate's clerks, my clerks. I am incredibly lucky to be in Waco where Baylor Law School is and so, at any one time in the school year, we probably have five to 10 interns who are doing really substantive work. And then, in the summer, you know, we continue to have interns but they may be from other schools because they are on their summer break. So, we have literally every hand on deck helping out.

There are things that are working in our favour. For example, my current sense is that because of the way I do the Markmans, where there is no discovery [before the hearing], we probably have a slightly higher percent of cases that settle after the hearing than you would in a different court because there hasn't been a lot of money invested yet. So, at that point, they have the claim construction, and the parties can say, “now that we know what the claim construction is, is this juice worth a squeeze, do we want to go further?”.

It hasn't been decided yet but my desire would be to get a permanent additional clerk. I am hopeful that my numbers justify that, you know, so that I would have four clerks instead of three. I think that would be phenomenal.

With two then focused on patent cases?

Yes, right.

You mentioned other courts that were drowning in patent disputes but at what point might you feel that you are drowning in patent cases?

I would only feel like that if I got to the point where I could not continue to set trials within 12 to 14 months. So far, knock on virtual wood, we are still setting every case about 12 to 14 months after the Markman. And the Markman is, you know, more or less six months into a case.

In Part Two of the interview tomorrow Judge Albright talks about the PTAB, why WDTX shouldn't be seen as plaintiff friendly, the state of 101 and listening to his favorite Supreme Court arguments. 

Richard Lloyd

Author | Editor

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