Richard Lloyd of IAM recently published a great article regarding the emergence of Waco as a top patent litigation forum (see https://www.iam-media.com/litigation/plaintiffs-are-flocking-ips-hottest-new-district-recent-changes-suggest-defendants). However, while we do not yet have a huge number of cases (I am hoping to change that substantively as well as with analysis here on the blog), I believe Waco is, without a doubt, the best place to file a patent litigation in the US.
Richard quotes my friend, Michael Smith, oracle of all things EDTEX, as pointing out several potential drawbacks of Waco. First, as anyone practicing in WDTX knows, discovery is limited until after claim construction. While this can be a drawback in certain circumstances, limiting (but not eliminating) discovery pre-Markman is smart, and helps limit costs for small business and NPE plaintiffs while they wait to get their claim construction. As someone that regularly represents “the little guy,” spending millions of dollars in time and money on reviewing discovery that, for the most part, will not affect the trial is wasteful. I learned how to work and try a case from my mentor, Sam Baxter, who taught me (especially in contingent-fee cases) to focus on the things that matter at trial. Large defendants will try to get small inventors and NPEs (and their counsel) to focus on other things, but if it is not needed for trial, then it is a waste of resources. Without hordes of lawyers that literally get paid to be inefficient, the little guys need to keeps their eye on the ball. And as anyone that has tried more than a few patent cases knows, only a few documents obtained in discovery are even remotely useful. Sam told me that we should be able to try the case the day we file it, and I have found that advice remarkably wise and productive. Limiting discovery to those things that are actually needed pre-Markman helps do that.
Plus, Judge Albright is a smart, common-sense judge, just as he was a smart, common-sense patent litigator before taking the bench. If something is truly necessary for your case, you will likely get it. Common-sense discovery rules are a good thing.
Second, Michael points out that parties are, absent prejudice, allowed to amend their infringement and invalidity contentions until several weeks after the Markman hearing. While less than ideal in some cases, because no one likes unpredictability, I don’t see this as a major problem, so long as the judge allows the jury to hear about the amendment and timing. Again, this is all about the jury, and unlike most courts these days, Waco allows the patentee to get their case to a jury in a timely manner.
While we’re talking about timing, perhaps the greatest advantage of filing in Waco is that patent owners will not have their cases stayed pending IPR. This is golden. In most courts around the country, the litigation is stayed for 12 to 24 months while the defendants throw darts as the patents via the PTAB. In addition to being remarkably unfair, it increases the cost and time of litigation for the plaintiff. This is particularly painful for small companies and individuals, who have to come up with between a $200K to $1M before they even get to step into court. This can be fatal for many folks. Let’s face it, few inventors have $500K lying around to wait until the USPTO agrees that the patent that they already granted is actually valid.
Lastly, the article points out that many hearings are taking place in Austin. Also, Judge Albright has made at least one inter-divisional transfer of a case from Waco to Austin. This is because the Judge’s son is completing high school in Austin this year. Judge Albright is often making the oh-so-beautiful drive up and down I-35 and there is no reason not to have hearings in Austin. In fact, as mentioned on this blog, Judge Albright encourages the parties to submit briefing via audio file so that he can listen to the while he drives back and forth. The Austin-centric portion of Judge Albright’s hearing schedule will likely diminish as Judge settles into his new home in Waco. In any case, again, I don’t see this as a problem, even if trials were to be held in Austin. Yes, many of the defendants are sued in Waco because they have a significant presence in Austin. However, I don’t see a jury being unfair to a patentee because Apple or any other large company has an office in Austin. Don’t get me wrong, I like the jury pool in Waco. But Austin is just not that bad, even if you have to have your case there.
Ultimately, patent owners that file in Waco know which judge they will get, because there is only one: Judge Albright. He is a capable, fair, and practical judge, which is why defendants don’t like Waco. It’s not that Waco is unfair, it is that Waco is fair to both sides. Big infringers don’t like this. But I (Erick) do. And so do patent owners starved for a forum to give them a fair opportunity to present their case to a jury.