Recently, David had the chance to interview the Honorable Alan D. Albright. In this Q&A with Judge Albright, the Waco Patent Blog hopes to provide practitioners in Judge Albright's court with some useful guidance and practice pointers.
WPB: Judge, many have taken note of your invitation to submit audio recordings for briefs. Are there any pointers that you would like to share with parties and their counsel?
Judge: First of all, there is no requirement to submit an audio file. I do find that it is helpful to have an audio version of a brief, but, with or without it, by the time for any action on my part I will have read every written brief that the parties submit. I certainly will not penalize any party for not providing an audio file. If a party does submit a file, it needs to be as an MP3 or Dropbox file. Also, I would prefer that the reader not speak out case citations, but rather simply say something like “see case”. Again, I will have read all of the written documents and the cited authorities.
WPB: Do you have any other “nuts and bolts”, brief-related suggestions for parties before your court?
Judge: Because I tend to write all of my own orders and opinions, and it is often useful to excerpt certain passages from the parties’ filings, I would appreciate receiving Word versions of motions and briefs. Counsel can email those to my law clerk.
WPB: When the inevitable discovery and other procedural disputes arise, how would you prefer that the attorneys approach the issue in your court?
Judge: I was in litigation practice for many years. I understand that counsel needs to protect their client’s interests, and that disputes will arise. I do not penalize attorneys or their clients for disagreeing. At the same time, I want to resolve disputes as quickly, fairly and efficiently as possible. So, I encourage counsel for all parties to simply call my chambers when a reasonable dispute arises. At that time, or as soon as I am available, I will resolve a reasonable dispute – have no problem doing that. At the same time, I do not want to get a call about petty disputes, the resolution of which would be apparent to any reasonable attorney.
WPB: While you obviously have any number of other kinds of cases, your patent docket seems to have received the most attention, nationally. Do you have any practice pointers with respect to the pivotal Markman hearings in your patent cases?
Judge: There are several features of my Markman hearings that parties would likely want to know. Unless the case is a multiple patent one, parties can expect one-half day for the Markman hearing. I have not yet found a case that required any more than that, though I do not at this time have an arbitrary argument time limit, either for parties or for any given claim term. With respect to argument, I will want to hear argument from both sides as to each disputed claim term, before moving to the next term. If a party is urging “plain and ordinary meaning”, I will want to first hear from the party that urges other than “plain and ordinary meaning”. While this may seem self-evident, I would like for at least one party to bring physical copies of the patent or patents at issue. I recently held a Markman hearing in which I was forced, because of a technical issue, to read the patent on my smart phone. I would also appreciate the parties bringing a simple list of the claim terms that are at issue. I’ve had cases in which the briefing actually left it unclear about what terms the parties were actually in disagreement. Finally, I want the parties to know that my goal is to reach the right claim construction, not to conform to any artificial structure for argument or time limits. I do not want to hear parties repeatedly arguing and re-arguing the same points over-and-over, especially once it is clear that we have exhausted all credible arguments and I have reached my conclusions, but I am happy to hear whatever counsel believe that I should hear until we reach that point.
WPB: Your standing order provides for tutorials. Do you have any pointers or preferences that you would like to share about tutorials?
Judge: As with audio files, tutorials are not required, but they can be very helpful in some cases. They are most helpful to me when they are structured in a way that explains, as simply as possible, what problem an embodiment of the claimed invention solves, and how it does it. I am not looking, for example, for just another way for a party to somehow support a claim construction position. Also, note that tutorials will not be on the record.
WPB: Your standing order for patent cases provide a clear structure and sequence for patent cases in your court. Do you have anything to add with respect to your prescribed procedures and schedules for parties to consider as they begin a patent case.
Judge: Yes, actually. As I have said in about every forum in which I have had the chance, my goal is to provide a venue in which every party knows that they have had their day in court, have had every opportunity to present their case, have been treated fairly, and have had every opportunity to do all of this in the most efficient and cost-effective way possible. Consistent with that, I not only do not mind, but encourage counsel to suggest alternative proceedings, sequences and schedules that depart from my default arrangements, if they believe that it makes sense for their case. If I agree, I will adjust accordingly.
WPB: Thank you for your time today, Judge. I think that this information will further help parties and their counsel appreciate the opportunity that both bringing and defending a patent case in your court represents for their clients.