from the good-for-them dept
At times I’ve been at odds with Senators Pat Leahy and Thom Tillis regarding their view on intellectual property (though Leahy has a good history on patent law — Tillis… not so much). However, kudos to both of them for recognizing a very, very real problem in the way in which Judge Alan Albright has been engaged in what’s been called jurisdiction selling.
If you don’t recall, Judge Albright, who was a patent litigator before being appointed to the bench in Waco, Texas, went on tour advertising that patent plaintiffs should file in his district court (where he is the only judge). And, this resulted in a ton of cases all being filed there. And despite Supreme Court precedent that says judges need to be willing to transfer patent cases to proper venues, Albright has been thumbing his nose at higher courts and seeming to do everything he can to keep cases in his court.
And now, both Tillis and Leahy are ringing appropriate alarm bells over Albright’s activities. Leahy and Tillis together have sent a letter to Supreme Court Chief Justice John Roberts to call out Judge Albright’s behavior. It is not often that you see two Senators (who lead the IP subcommittee, no less) sending a letter to the Chief Justice to accuse a district court judge of being up to no good. It’s quite a letter.
We write you to express our concern about problems with forum shopping in patent litigation.
Our understanding is that in some judicial districts, plaintiffs are allowed to request their case be
heard within a particular division. When the requested division has only one judge, this allows
plaintiffs to effectively select the judge who will hear their case. We believe this creates an
appearance of impropriety which damages the federal judiciary’s reputation for the fair and equal
administration of the law. Worse still, such behavior by plaintiffs can lead individual judges to
engage in inappropriate conduct intended to attract and retain certain types of cases and litigants.
We are particularly concerned with this problem in the context of patent litigation. In the last two
years our nation has seen a consolidation of a large portion of patent litigation before a single
district court judge in Texas. In 2016 and 2017, this single district court heard only, on average,
one patent case per year. Last year, however, nearly 800 patent cases were assigned to one
judge in this district. This year, this district appears to be on track to have more than 900 cases.
This means that roughly 25% of all the patent litigation in the entire United States is pending
before just one of the nationâ€™s more than 600 district court judges.
The concentration of patent litigation is no accident. We understand that a single judge in this
district has openly solicited cases at lawyersâ€™ meetings and other venues and urged patent
plaintiffs to file their infringement actions in his court. Our understanding is that this single
judge has also repeatedly ignored binding case law and abused his discretion in denying transfer motions. This has resulted in a flood of mandamus petitions being fled at the Federal Circuit. The Federal Circuit has been compelled to correct his clear and egregious abuses of discretion by granting mandamus relief and ordering the transfer of cases no fewer than 15 times in just the past two years.
The extreme concentration of patent litigation in one district and the unseemly and inappropriate conduct that has accompanied this phenomenon are, in our view, the result of an absence of adequate rules regulating judicial assignment and venue for patent cases within a district. While we do not know of similar problems occurring in other single-judge districts, it is not hard to imagine similar scenarios arising under a set of rules that allows a plaintiff to effectively choose a particular judge to hear their case. In order to correct these issues, we request that you direct the Judicial Conference to conduct a study of actual and potential abuses that the present situation has enabled. Additionally, we ask that such a study consider and implement appropriate reforms that you can take to address this issue. Finally, we ask that such a report provide legislative recommendations to ensure this problem does not arise in the future.
While simply asking for a study and exploring reforms may not seem like a big deal, it does seem like a warning shot. If something isn’t done to fix this by the Judicial Conference, then Congress may need to step in.
Meanwhile, on the same day Tillis sent another letter (without Leahy) to the current commissioner for patents at the USPTO calling out a separate issue involving Judge Albright. This gets a bit deep into the weeds, but, as we’ve covered, there have been ongoing fights over the whole inter partes review process. This is where certain patents can be challenged before a special patent review board — the Patent Trial & Appeal Board (PTAB) — which is charged with determining whether or not the original patent was granted in error. Patent holders hate hate hate hate the PTAB/IPR process and have been looking to kill it for some time. A key part of their argument is often that it involves two different processes — sometimes in parallel for killing a patent. The patent can be challenged both in court during a case, and before the PTAB via IPR. Last year, in the Apple v. Fintiv case, a rule was put forth that the PTAB would deny the IPR process to cases that were far enough along, to prevent two parallel challenges to the patent (with possibly opposing outcomes) happening at the same time.
This new letter from Tillis highlights how Albright appears to be using this ruling to block PTAB IPR challenges by scheduling unrealistic trial dates, which are then used to block the PTAB from going forward with an IPR.
As you know, Fintiv instructs the PTAB not to institute an Inter Partes Review (â€œIPRâ€) procedure to challenge a patents validity if the panel deems it to be more efficient to allow parallel district court litigation to proceed based on a balancing test comprising six non-dispositive factors. Again, while I strongly support the policies underlying Fintiv, my concern relates to the PTABâ€™s application of the second of these factors: the proximity of the court’s trial date to the PTABâ€™s projected statutory deadline for a final written decision. Specifically. I am concerned that the PTABâ€™s historical practice of crediting unrealistic trial schedules. This has not only produced outcomes that are untethered from the policy underpinnings of the Fintiv rule, but it has also created harmful incentives for forum shopping and inappropriate judicial behavior.
The negative consequences are most pronounced in the Waco Division of the U.S. District Court for the Western District of Texas. The sole judge in that division schedules very early trial dates for all patent cases assigned to him. Often, these dates prove to be not just unrealistic, but they [sic] impossible to fulfill as multiple conflicting trials are frequently scheduled to occur on the same date before the same judge in the same courtroom. However, because PTAB panels interpret Fintiv to require scheduled trial dates to be taken at face value, panels have regularly exercised discretion to deny institution of IPRs in deference to litigation pending before that district.
Tillis doesn’t hold back that this is mostly because of Judge Albright:
To be clear, Ibelieve judicial conduct is partly to blame for this situation. Once a case has been filed in the Waco Division, many defendants have found it all but impossible to persuade the division’s sole judge to transfer the case to a more appropriate venue. In denying such transfers, the court has repeatedly ignored binding case law and abused his discretion. This misconduct has resulted in a flood of mandamus petitions being filed at the Federal Circuit, The Federal Circuit has been compelled to correct his clear and egregious abuses of discretion by granting mandamus relief and ordering the transfer of cases no fewer than 15 times in just the past two years.
Notably, in granting these petitions, the Federal Circuit has cast grave doubt on the reliability of the Waco Division’s trial schedules and claims regarding efficiency of adjudication. The appellate court has strongly criticized the division’s improper reliance on purportedly greater â€œcongestionâ€ in transferee courts in attempting to justify inappropriate denials of transfers under 28 U.S.C. § 1404(a). More specifically, the Federal Circuit has refused to credit the division’s overly optimistic assumptions regarding the time-to-trial in cases, admonishing the division’s judge that a â€œproper analysisâ€ considers â€œthe actual average time to trial rather than aggressively scheduled trial dates.” Moreover, the circuit court has also implicitly questioned whether even amore accurate â€œproper analysisâ€ based on precise caseload counts and the accurate time-to-trial statistics produces a reliable assessment of relative court congestion, characterizing this analysis as mere â€œspeculation.â€
Tillis concludes by basically saying that the PTAB should ignore trial dates set by Albright in doing a Fintiv analysis:
Based on the facts currently available to me, it is difficult to imagine any plausible justification
for the continued reliance on the demonstrably inaccurate trial dates set by the Waco Division. I therefore ask that you undertake a study and review of this matter and consider whether Fintiv should be modified to account for unrealistic trial scheduling. I ask that you complete this review and implement appropriate reforms based on your findings by no later than December 31, 2021.
It’s pretty incredible for a single judge to get this much attention, let alone two separate letters calling out his behavior. Of course, seeing as he’s done little to change his behavior despite the Federal Circuit continuing to push back on his activities, it’s unclear if any of this will change how Judge Albright acts.