PATENT LITIGATION IN THE WESTERN DISTRICT OF TEXAS
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Read my latest post on why patent owners are flocking to Waco on the Porter Hedges Blog at https://www.porterhedges.com/patent-litigation-law-blog/what-is-in-the-water-in-waco  
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 A hearty Waco congratulations to the Baylor Bears Men's Basketball team on winning the NCAA championship! Well done!
We all know about Marshall and the EDTX as well as Waco and the WDTX, but don't forget about Houston and the SDTX! My partner, Miranda Jones explains here.  Follow Porter Hedges's New Patent Litigation Law Blog here: https://www.porterhedges.com/patent-litigation-law-blog
#PatentsAreBack #PorterHedges #patentlitigation #patents #texaspatents #SDTX #HoustonPatents  I particularly appreciate this honor as both my Texas and Chinese patent litigation practices continue to grow exponentially at my new firm. I am looking forward to achieving great things for my amazing clients at Porter Hedges LLP.
Thank you to my clients, colleagues, and to IAM! #PatentsAreBack #PatentLitigation #ChinesePatents #TexasPatents  Judge Albright has claim constrruction hearings scheduled this week via Zoom and all are invited to observe.
Here are the details (the Zoom info is the same for both):
Join ZoomGov Meeting https://txwd-uscourts.zoomgov.com/j/16057076711?pwd=WHljN0h3Yk03K3JLUTZ2a0tTMitPZz09 Meeting ID: 160 5707 6711 Passcode: 873559 One tap mobile +16692545252,,16057076711#,,,,,,0#,,873559# US (San Jose) +16468287666,,16057076711#,,,,,,0#,,873559# US (New York) Dial by your location +1 669 254 5252 US (San Jose) +1 646 828 7666 US (New York) Meeting ID: 160 5707 6711 Passcode: 873559 Find your local number: https://txwd-uscourts.zoomgov.com/u/aecopz1LeN Join by SIP 16057076711@sip.zoomgov.com Join by H.323 161.199.138.10 (US West) 161.199.136.10 (US East) 52 61 100.140 Meeting ID: 160 5707 6711 Passcode: 873559 Judge Albright has a Markman hearing TODAY (Friday) via Zoom starting at 9am CT am. If you would like to learn how the Court handles claim construction, this is a great opportunity. The access information is below:
PLEASE ENSURE YOU ARE ON MUTE SO AS NOT TO DISTURB THE HEARING!! Join ZoomGov Meeting https://txwd-uscourts.zoomgov.com/j/16057076711?pwd=VzFsL3RPZXIwMGJ6Tjg4MEROdzk2UT09 Meeting ID: 160 5707 6711 Password: 384912 One tap mobile +16692545252,,16057076711#,,1#,873559# US (San Jose) +16468287666,,16057076711#,,1#,873559# US (New York) Dial by your location +1 669 254 5252 US (San Jose) +1 646 828 7666 US (New York) Meeting ID: 160 5707 6711 Password: 384912 Find your local number: https://txwd-uscourts.zoomgov.com/u/aecopz1LeN Join by SIP 16057076711@sip.zoomgov.com Join by H.323 161.199.138.10 (US West) 161.199.136.10 (US East) 52 61 100.140 Meeting ID: 160 5707 6711 Password: 384912  I am honored to be selected for the IAM Strategy 300 for the sixth straight year.
I greatly appreciate IAM, as well as my clients, colleagues, and friends for their trust ! I especially thank to my US and China teams for helping me create a one-of-a-kind patent litigation practice. When I left my very good in-house position at Qualcomm a little over five years ago with no clients, things could have gone horribly wrong. There have been hiccups, of course, but I during this period, I have been honored to work with the top patent litigators in the world. What started as a limited IP practice focused only in China has become a worldwide patent litigation and licensing practice focusing on the US, China, and Germany. With the growth of litigation funding for US patent litigation and fair judges like those in the Western and Eastern Districts of Texas, the US part of my practice has continued to flourish. The magic, though, is combining US, Chinese, and German patent law into a worldwide enforcement campaign. Successful patent enforcement is no longer limited to one or even two countries. Rather, it is a vital part of business planning, and can require access to unfamiliar jurisdictions. As the world gets smaller and smaller, I have been honored to help clients successfully litigate in the US, Mainland China, Taiwan, Germany, France, Brazil, Vietnam, Singapore, and Italy. I love what I do, and although that is generally enough, I appreciate the occasional accolade from great folks like IAM to substantiate that I am making a difference. I owe all of my partners, associates, assistants, friends, and clients for supporting me over the years, and especially during this horrid 2020. Here's to a better year next year, and to great patents and technology! 多谢! The "Albright Doctrine" First, to be clear, the naming of the "Albright Doctrine" is mine, and hopefully no one (especially Judge Albright or the WDTX) takes offense. What I am calling the Albright Doctrine is simply the idea that a federal court can get to trial more quickly than the PTAB can both institute and and adjudicate an inter partes review. Judge Albright has been outspoken about this issue, saying specifically that "[i]t's my job to give people the opportunity to have their cases tried in a federal court ... and I probably can get a patent trial resolved more quickly than the PTAB can." Patent cases in Waco have been moving MUCH more quickly than in courts in Delaware and California. For example, most claim construction hearings in Waco have taken place between 8 and 12 months from case filing according to data obtained from Lex Machina. Even more important than a quickly moving docket, though, is that Judge Albright has does not generally stay litigation due to an IPR request or institution. When asked recently by IAM why this is, here is how the Judge replied:  https://www.iam-media.com/law-policy/albright-the-last-thing-anyone-should-think-about-venue-it-plaintiff-friendly In allowing patent owners their day in court in a timely manner, Judge Albright has single-handedly changed the tenor of patent litigation and provided a fair and reasonable jurisdiction for patent disputes. Now, the PTAB is jumping on board! As indicated below, the PTAB has basically stated that if the invalidity challenges are the same in the IPR request and parallel patent litigation, then if a court has a reasonable chance of adjudicating the issue first, the Board will use its discretion and not even institute a review. In essence, the PTAB is saying, "yes, we believe that courts can move more quickly than we can, and if the issues are the same, then any IPR would be moot and should not be instituted." This is what I call the Albright Doctrine: that a district court can moot an IPR by moving quickly to trial so that a jury can adjudicate validity rather than the PTAB. I am a fan, because I agree with Judge Albright that juries are wise and will make the correct decisions through the longstanding U.S. trial system if allowed to do so. I am sure that infringers and those that do not respect patents would disagree. Board Rejects Institution of IPR of FinTiv Patent Last Wednesday, May 13, the PTAB denied institution of an IPR of Fintiv Inc.'s Patent No. 8,843,125. Apple had requested institution while Fintiv asserted that the PTAB should deny institution because Apple had raised the same invalidity challenges in the district court proceeding, which should be resolved before the PTAB reached its final decision. The PTAB in its previous March 20 order regarding the same matter identified six factors for determining whether to institute the IPR under 35 U.S.C. § 314(a):  After reviewing the parties' briefs as to whether the Board should use its discretion to deny Apple's petition based on the board's precedential NHK Spring decision, the PTAB declined to institute review. In NHK, the PTAB refused to institute an IPR when a trial was set to take place before the Board was expected to issue a final written decision, after analyzing factors six non-exclusive factors: Six Factors Made Precedential
The Panel in its March 20 order made the six factors precedential, building on its NHK Spring decision and requiring future panels to analyze these factors when determining whether to exercise discretion to refuse review of a challenged patent on the ground that an upcoming district court trial will address the patent's validity. Specifically, in its May 13 decision denying institution, the Board found that five of the six factors weighed in favor of denying Apple Inc.'s IPR bid, including the upcoming trial date of March 8, 2021 (postponed from November 16, 2020 due to COVID-19 pandemic) in the parallel litigation in the Western District of Texas (case no. 1:19-cv-01238-ADA). Other factors that supported denial of institution of IPR included:
This PTAB decision makes the most sense of any I have seen in some time. I hope other courts around the country will adopt Judge Albright's policy of not staying cases and moving cases quickly to trial. Only time will tell, but right now, the PTAB just gave Judge Albright a vote of confidence. Part 2 of IAM's Interview with Judge Albright (aka "Why Waco is Fair, and Not Plaintiff-Oriented)4/9/2020  Richard Lloyd at IAM has published part 2 of his interview with Judge Albright of the Western District of Texas Waco Division. For part 1, see my earlier post. Interestingly, Judge Albright makes a point to point out that his court should not be considered plaintiff-friendly, but rather, "scrupulously fair": So, every single time I have ever given a talk to anybody, I have tried to stress that what I am hoping the people are going to get from my court is someone who had 20 years of experience handling patent cases and handled a fair number of patent trials to verdict - but also handled them on both sides of the docket. I want every party that comes out of my court to feel like I was scrupulously fair:  I have been saying this since Judge Albright (re)took the bench. Patent owners are rejoicing at the ability to file in Waco not because they get an unfair advantage, but rather because -- unlike many district courts and the PTAB -- the rules are not 100% against them. Perhaps the most important aspect of Judge Albright's court is that he generally does not stay litigation pending IPRs at the PTAB. As he says in part 2 of the interview: "I think that people have a constitutional right to assert their patent. I mean, patents are in the Constitution, the right to a jury trial is in the Constitution. I am not taking away anyone's right to go to the PTAB, but I think people ought to have a jury trial. [] I don't have any problem with the idea of the PTAB handling validity issues, but I will say this: I think juries are very wise and I think we can count on them to make the right decisions if they are provided with the right evidence. So, I have great faith in the juries on every issue." It's sad that because defendants do not have their normal huge advantage, they are eager to imply that Waco is "plaintiff-friendly." Like Judge Albright, I think the better term is "fair."
  Richard Lloyd at IAM just published his excellent interview with Judge Albright of the Western District of Texas Waco Division. I fully recommend everyone give it a read.
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