Patent Litigation in the Western District of Texas: An Afternoon Discussion with Judge Alan Albright and a New Take on Patent Case Procedures

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The Federalist Society’s Intellectual Property Practice Group will host a conversation with the Hon. Alan D. Albright of the Western District of Texas and Art Gollwitzer III, an attorney with Michael Best in Austin, TX. The speakers will be introduced by the Hon. Ryan T. Holte of the U.S. Court of Federal Claims.

Please join us for a conversation expected to cover Judge Albright's approach to patent cases; a unique brand of local patent rules; innovative advisory council group on rules; goals for the rules and how they work in daily practice; and a discussion regarding how new patent procedures evolve to meet the needs of a rapidly growing patent litigation docket.

Note: Mr. Gollwitzer has a short article on local patent rules, linked here for those interested. 

Featuring:

Hon. Alan D. Albright, U.S. District Court, Western District of Texas

Arthur Gollwitzer III, Michael Best

Introductions: Hon. Ryan T. Holte, U.S. Court of Federal Claims

 

This call is open to the public and press. Please dial 888-752-3232 at or after 2:00 pm ET to access the call.
 

Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

Nick Marr:  Welcome, everyone, to The Federalist Society's Teleforum conference call as this afternoon, September 24, 2020, we are pleased to host this event sponsored by our Intellectual Property Practice Group called "Patent Litigation in the Western District of Texas: An Afternoon Discussion with Judge Alan Albright and a New Take on Patent Case Procedures."

 

      My name is Nick Marr. I'm Assistant Director of Practice Groups at The Federalist Society. As always, please note that expressions of opinion on today's call are those of our experts.

 

      I'll introduce first Judge Ryan Holte. He's a federal judge on the U.S. Court of Federal Claims. He'll introduce our other speakers who will then have a discussion on patent rules and new developments.

 

      Towards the end, we'll open it up for audience question and answer, so be thinking of your questions for when we get to that portion of the call.

 

      Judge Holte, thanks for being with us here today. The floor is yours.

 

Hon. Ryan T. Holte:  Great. Thank you, Nick. It's my pleasure to begin this call, and I will try to move through these bios quickly in order to make sure that we have ample time for our excellent discussion.

 

      Our first participant is a great friend and mentor of mine for a number of years now. Judge Alan Albright is a federal district judge for the Western District of Texas Waco Division. Judge Albright was nominated by President Trump in January 2018, confirmed, and was sworn in September 2018.

 

      Prior to taking the bench, Judge Albright was a partner in the Austin office of Bracewell LLP. He practiced IP litigation and handled trials in both federal courts and the ITC. Before practicing law in Austin, he earned a BA in political science from Trinity University in San Antonio and a J.D. from the University of Texas School of Law in Austin where he was a member of the Texas Law Review.

 

      Following law school, Judge Albright clerked for the Hon. James Noland in Austin, Texas. Judge Albright later served as a United States magistrate judge from 1992 to 1999. He's taught classes as an adjunct professor at the University of Texas School of Law, was recently inducted into the American College of Trial Lawyers, and on a personal note, he has two sons and is an avid runner and cyclist.

 

      I'll just note at the onset that I'm especially looking forward to more background on a discussion related to his patent rules. In a handful of cases that I've had on my docket now, when parties seemingly cannot agree on anything in their patent litigation, I've suggested Judge Albright's case management rules and his procedures as a guide for their case, and that received overwhelming support from both sides. So this will be a great discussion.

 

      Our second panelist is another good friend of mine, Arthur Gollwitzer, a Partner in Michael Best's Austin office and the immediate past managing partner of that office. His practice concentrates on intellectual property litigation as well as internal investigations, False Claims Act suits, partnership and breach of fiduciary duty, and breach of contract matters.

 

      Art writes and speaks frequently on a wide range of topics from the Boston bomber to patent litigation reform as well as local patent rules, which we'll discuss as part of this event this afternoon.

 

      Prior to joining Michael Best, Art served as an assistant United States attorney in the Southern District of New York where he was the lead prosecutor in criminal trials including federal intellectual property crimes.

 

      With that, I'll hand things over to Art, and I'll come back in about 30 minutes in order to make sure that we can ask Art some questions before I field questions from the audience at the end.

 

      Art?

 

Arthur Gollwitzer:  Thank you. And thank you, Judge Albright, for joining us. As we've just heard, we've just passed the two-year anniversary of your taking the bench, and in that time, your courtroom has become the busiest court in the country. I think that's based on 2020 filings. You're at the top of the list. People are taking note. I see repeated articles in Law 360 and elsewhere regarding best practices in your courtroom, what lawyers can expect, etc.

 

      The introduction to this program attributes this success to a unique brand of local patent rules. Do you agree that you've created something new and different? And, if so, what are your goals?

 

Hon. Alan D. Albright:  Well, I will tell you, I think the second or third time I got interviewed and was asked the question about why patent filings had increased to some degree in the Western Division and asked me what I attributed that to, I jokingly said, "It's because I'm so awesome," and I thought the reporter would understand that was a joke, but he quoted me directly in that article. So I try to be a little more judicial in what I say.

 

      I would, frankly, give all the credit to people other than myself, really. I'll start with my law clerks. I have an exceptional law clerk who has a PhD in EE—and he'll be succeeded by someone with a similar technological background in the new year—who works tirelessly. We are able to mind meld. My other law clerks—I have a substantial number of civil cases only half of which are patent—and my other law clerks keep us from drowning with the non-patent cases. I'm unbelievably blessed to have great law clerks.

 

      The other thing that I did, and when history is written about my judgeship, I sure wish I could remember why I did this. I don't know why I did, but I knew going in that one of the things I liked the very best about the Eastern District patent practice was that if I wanted to file a suit there or if one of my clients got sued there, there was such great certainty of when things would happen.

 

      I thought having rules that lawyers could give their clients that kind of certainty would be very beneficial. So I put together an ad hoc committee, which I'm pretty sure there's no doubt you're on, but I put together a committee of lawyers that is open to anyone on the call to join as well.

 

My goal was pretty simple. I wanted to come up with a default schedule and other procedures, and it's morphed into protective orders and other issues now, but I wanted to come up with a procedure that would be viewed by both sides as being so fair that they would either decide, okay, this is a good default. Or, if they wanted to deviate from it, they could do so because it fit the case without feeling like they were giving up some benefit that the scheduling order offered to one side or the other.

 

      The committee was made up intentionally of, I thought, just absolutely wonderful patent litigation attorneys of every stripe—if people represented large defendants, if people presentenced small defendants, if they were a big law firm, if they were a small law firm, if they worked suing on large patent cases by the hour, or if they worked for non-practicing entities. I wanted as much representation from every facet of patent litigation as I could get because I wanted them to negotiate a scheduling order that everyone would think would be fair.

 

      I'll give you a specific example. In my career, I probably handled roughly 60 percent defense cases, 40 percent plaintiff, but if you break down my trials, I had over a dozen patent trials. I think that was almost an exact 50/50 split. So I had a pretty good idea of what both sides was interested in. One of the concerns that almost every defense counsel raised with me, a generic concern, was over the length of time that they had to do the original invalidity contentions.

 

      So, kind of the bargaining process of the scheduling order. I made sure that that period of time was sufficient to satisfy the vast majority, if not all, of the defense lawyers who were participating on the committee. And it was that kind of buy in, I thought, that was very beneficial.

 

      It turned out to be a -- and I'm not saying it was brilliant because I came up with it. I'm not sure that I was the one who thought of the idea of doing it that way. But it's turned out to be a really great deal because what it allows parties to do now, by and large, with the exception of the 1 percent case that falls out of the norm, it basically allows the attorneys to get together, figure out when the Markman date in my scheduling order would work best for them. They contact my law clerk and see when we're free on the schedule to have one.

 

And, then, the other dates, by and large, fall pretty much before and after that. Then, people know that they're going to be going to trial in my court, or typically, they would know, and I think it's in my local rules that serve a warning.

 

For example, I have a Markman tomorrow on a case. I don't know if I've entered a trial date or not, but that trial will be going to trial before the end of next year. So roughly 12 to 16 months after the Markman, I'll be setting it for jury trial. And that's very standard in my court.

 

      Hopefully, all of that has helped in terms of if someone like you who gets a client who comes in and they say, "Where should we file? What'll happen if we file in Waco as compared to other places?" Or, if someone comes in and says, "We've been sued in Waco. How does this compare to what happens in other courts where we've been sued?" Lawyers should pretty easily be able to predict for them what will happen.

 

Arthur Gollwitzer:  In your two years on the bench, as you've moved towards those goals and the notoriety of your district/your practices has increased, are there any misperceptions out there that you'd like to correct? Is there anything that you think is misunderstood or exaggerated about how things go in your courtroom?

 

Hon. Alan D. Albright:  I think one thing that concerns me is that occasionally, I will read people who write articles about what we're doing here and intimate that this is in any way what might be thought of as a plaintiff's court.

 

      Again, I wasn't an entirely plaintiff's lawyer on the patent side, and to the contrary, at every opportunity I've been given to speak publicly, like this, whatever I've done, I've tried to make it clear that what I would -- let me go back a second. When I got on the bench, it was not that long after TC Heartland had been decided, and there was some shift of cases in different places.

 

      What I perceived was, because of TC Heartland, it seemed to me that Delaware and California were getting swamped. My vision was not to compete with any other district. I think that's -- I've got a lifetime job. It doesn't matter in that regard.

 

      What I perceived myself as doing was if I could create a venue that lawyers who did patent litigation found acceptable, then that would be -- and there are not a lot of divisions throughout the United States who have judges who have a lot of patent experience. My goal was to make it so that this year, in Delaware, instead of them getting 1,000 cases because they're Delaware, my goal would be that some of those cases would be filed in the Western District to help everyone get to trial more quickly and help things get resolved more quickly.

 

      I have no interest in being perceived to be a docket or division that is biased in favor of either party. What I would be pleased to be perceived of is as a court that is very fair to both sides, that understands patent law pretty well after doing it for 20 years, who had trials, and that -- I do think it's not lost on anyone that I will get people to trial pretty quickly. And given the fact that patents are in the Constitution, jury trials are in the Constitution, and that I've been blessed to be confirmed as a federal Article III judge, that I should do my very best to make the system work as well as possible.

 

      I think getting a case to trial relatively quickly while still allowing the lawyers to develop the case adequately; I think that's a good thing and not a bad thing.

 

Arthur Gollwitzer:  Judge, in the introduction, Judge Holte mentioned, and then you've alluded to your extensive experience as a patent litigator, which, as you say, is not the norm on the federal bench. Can you give examples of ways in which that has informed how you run your courtroom? I know you mentioned a moment ago sufficient times to prepare invalidity contentions, for example.

 

Are there other things that you'd like to touch upon where you were able to draw on your experience to make your court a place where people on both sides want to litigate their patent disputes?

 

Hon. Alan D. Albright:  Well, I lost a billion and a half dollars once in a jury trial. That will certainly help educate you. I think everything I'm doing is to try and overcome the things I didn't like.

 

      For example, as you know, if you have—this is you, personally—have a dispute with opposing counsel, whether it be over the number of pages that can be printed of the source code to how long a deposition can be to any issue that could be thought of in a patent litigation sense, I don't have people file motions. I have them immediately, when there's a conflict that they can't resolve, contact my law clerk. So far, it's never taken me longer than 24 hours to have a hearing by phone and resolve the issue.

 

      I try to be very patient. Two days ago, I had between an hour and a half and two-hour phone call just trying to get the parties through the issue of how do we get adequate access by plaintiff and their experts to source code in the time of COVID and adequately protect the source code?

 

I'm sure there are judges who would say, "Oh, good lawyers could just work this out." I don't see it that way. I think having court intervention, especially with someone who, like in my case, has actually seen a computer monitor sitting in my law office with source code on it; I kind of get what the issues are.

 

      I've done my very best to make myself accessible. I've had situations where people have called in and said, "We need something resolved," and I've been on the phone with them ten minutes later. So I try to do that.

 

      Another thing, I think, where we have improved -- well, another thing that I do is I do all of my conferences that I can get away with doing remotely. When COVID hit, it was a dramatic change for me to start doing, for example, Markman hearings by Zoom, but it was not a dramatic change for me to be doing hearings by Zoom because, as I said, I was already doing all my discovery motions by phone, and I was already doing all my scheduling conferences by phone. I think that's something that lawyers also liked and appreciated.

 

      Another thing that we're doing now that I did originally to try and benefit attorneys was we now provide preliminary constructions to the lawyers the day before the Markman rather than waiting. That's important for a couple reasons. One of the reasons is that I never liked the problem I had when discovery was running parallel with fights over what claim terms meant and all that. It seemed to me it was better to have that issue of law resolved early before discovery started.

 

      In my court, with a couple of minor exceptions, discovery is stayed until the Markman. But, the lawyers get a ruling, a final ruling, on the claim constructions at the Markman at which time discovery will start. I know Marksman's a big deal with everyone, but for me, it's really the gun going off for people to get started on their case.

 

      I think I've probably done just under COVID, a dozen, 15, 20 Markmans since March. I have found, in every instance where we provide preliminary constructions, it has cut my hearings in Markmans. I haven't had one that lasted more than two hours since I started doing that.

 

      The attorneys come in, they have a general idea of what I'm thinking. I strongly encourage the attorneys at the Markman—I would encourage the attorneys on this call if they practice in front of me—I have, and my clerks have, carefully read the briefs. We've carefully gone over what the appropriate construction would be, so it is unlikely you are going to persuade me that I'm just wrong and that I ought to use the claim construction that you had offered that I rejected.

 

      But that doesn't mean that the Markman hearing is a waste of time in any way because, on probably about a third of my proposed constructions, I proffer a construction that the court has written rather than adopting one that the parties have, and so the hearing is always invaluable to me for lawyers like you to make suggestions.

 

      "Judge, you have proposed the following construction for this claim term. We're 90 percent in agreement, but we think you ought to delete this word. Or we think you should add these two words, and let us show you in the spec where that is." I think probably, in nine out of ten Markman hearings, I've wound up changing at least one, if not more, preliminary constructions based on what the lawyers have argued, and it's almost always been, if not always been, where the lawyer didn't try and persuade me why what they had said is correct; it's where they've come in and they've helped me make it a better preliminary construction. I am very open minded in any argument in that regard.

 

      I think, again, it's been two years now. I've had a pretty goodly number of -- I've done a lot of things now, and you just get better when you do things. We try in each hearing to improve. If anyone on this call can think of a better way than I'm doing anything, I invite them to call my clerk and make a suggestion. We're constantly trying to improve what we're doing.

 

Arthur Gollwitzer:  Let me turn that question around, then. In your two years on the bench, is there anything that you came to the court thinking you'd do—as a practicing lawyer, you thought, "Geez, I wish the judges did it this way"—and then you got to the bench and now, two years later, you're realizing, "Ah-ha, the lawyers are wrong and the judges had it right. I'm going to reverse course and change my view of this."

 

Hon. Alan D. Albright:  Let me tell you, I think the area where I'm most sympathetic to judges now that I was less sympathetic with before. The longer you do this, the less patience you have. Let me explain why I think that is. The longer I do this, the more quickly, when lawyers are making arguments, the more quickly I think I get to the endpoint of their argument.

 

I am more, hopefully not rude, but I am more likely, when I figure out where someone is going and I either have a question or want to get them there more quickly, I am much more likely in this September than I was in my first September to interrupt somebody and not let them finish a thought.

 

      In part, also, that's because what you say makes for a question that I think is important for me to help resolve something, and almost always, your being able to answer my question is more valuable to you and your client than whatever it is that you kind of canned that you were about to say.

 

I would say I've grown more and more interactive. Let me say, I'm not auditioning for the Supreme Court. Apparently, I'm not qualified, in some ways, to be the next nominee, so that's not the point. But, I think my style of handling hearings is much more like the Supreme Court where the judges feel free to interrupt the lawyer to get to the point they want them to get to.

 

      Maybe a practice tip for the folks in the audience is if you are going to bring a PowerPoint, I would make it, for me, I would make it a short PowerPoint, and I would never have anything more than one small point on any PowerPoint. In other words, I would use it almost as a visual outline for me of the outline of the points that you're going to go through. Because I have no patience to be having someone read to me long PowerPoints or really to have much stuff on the PowerPoint.

 

I'm much more interactive with the lawyers, and so your PowerPoints are best when they're helping you, the lawyer, remember what it is that you're going to say and just moving to the next point. The more quickly you move through the PowerPoint with me, the more successful you're going to be.

 

And the more you rely on just making your argument, and most importantly, answering my question and actually answering it directly. If I ask—like this morning—if I ask a question of when did something happen, I really want an answer to that rather than, "Well, judge, you need to understand in this case…" and then he went on for a while. Well, he didn't go on for a long while because I interrupted him.

 

I had a reason I had asked the question, and that's really what I wanted to hear was an answer to that question. I probably have learned that the more time a judge has on the bench, they're getting better at knowing what you're going to say because they've heard a lot of this a lot, and they just want to move you to the conclusion and get to the point that matters to them.

 

Arthur Gollwitzer:  Let's spend a few more moments talking about your advisory council and how your rules, your order, has been generated. Have you had instances in the past couple years where maybe you've disagreed with your council or you've hashed anything out that you can share with us? How's the sausage being made, as they say, about democracy and legislation?

 

Hon. Alan D. Albright:  Oh, I'll give you, I think, an exact example. There's nothing being hashed out because I don't -- hashed out in the sense you might mean where there are competing interests and I'm trying to resolve it like legislation.

 

What I'm trying to do is decide what's -- I've got really two contingencies here. One is the lawyers and their clients, but the other is my court. What I mean by that is -- a big example would be how many pages should I allow people to have in briefs? The more generous I am with lawyers, the greater burden I place on myself and my staff. At some point, it's counterintuitive, maybe, but at some point, it's not good for lawyers to have more than less if it's more than we can do.

 

      A real specific example is I go back and forth in my head all the time whether or not we need to have, with Markmans and some other motions, whether or not we need to have reply briefs. I understand the reasons why they may be a very good idea. I understand the fact that sometimes the plaintiff may not raise a real issue until they file their response, and the reply gives the defendant an opportunity to respond to that.

 

      On the other hand, it's one more round of paper for us to review, and I don't know -- a lot of times, what's in the reply is simply a regurgitation of what we've already heard in the response. And, don't forget, I'm going to have a Markman hearing. So, if there's a point that could be made in a reply, the lawyers will have an opportunity to make it in a Markman. I don't put time limits on the Markmans.

 

      But I understand, having practiced law in that area for 20 years, that there are people who are willing to die on a hill to keep the replies, and there are people who are eh, don't care either way, and there are people who think it'd be easier. My law clerks would love it if we didn't have replies.

 

      So I try and figure out, overall, what will work best for everybody knowing there's no magic bullet; there's no perfect answer. I'm really just trying, in every revision, to do it better and to listen to counsel like you who have input and give me thoughts about how things can be improved, how words can be improved, whatever I can do to make how I'm handling things more efficient or the procedural rules better. I'm always all ears.

 

Arthur Gollwitzer:  You mentioned earlier that a couple of your goals are certainty and fairness and speed to resolution. As your caseload has increased, is that putting stress on those goals? Is it affecting how recent amendments to your standard order have come to be? Do you anticipate problems in the future, especially on the certainty and the speed goal, in light of the caseload?

 

Hon. Alan D. Albright:  I think maybe on the very edges, yes. But no. For example, starting in September, I got a fourth clerk. I think there is at least a possibility I will be getting another magistrate judge early '22. So I think we're doing -- I think we're fine.

 

      I've been able to get just extraordinary great talent in terms of who I've hired. Right now, there's no one who's been in my court in the last year who doesn't know Dr. Josh Yi. He is my clerks. The clerk that's replacing him in January is going to be equally beloved in a quick manner. I have another law clerk that will be starting in August who spent, I think, a dozen years as a patent examiner before going back to law school and is now at a patent litigation firm. They're going to loan him to me for a year or so.

 

      We've got people working here -- and by the way, I'm still a lawyer, so when stuff comes in, I'm able to work on a lot of it as well and be involved and help get things done. Will it be perfect? Will there be months when we have a problem getting every trial in like happens in Marshall and other places? Sure. But by and large, I anticipate things going pretty well.

 

Arthur Gollwitzer:  If we can, let's take a step back, or a step to a higher level and talk a bit about the policy behind not just your standing order but local patent rules in general.

 

There are districts, well-known patent districts like the Eastern District of Virginia, the Western District of Wisconsin, that developed reputations for being very fast with few, if any, rules.

 

      And, then, of course, there's other districts like the Northern District of California and the Eastern District of Texas that sort of pioneered the local patent rule movement that was followed then by some of the bigger cities.

 

      Did you consider going the no-rules route? Did you consider some other approach? How did you get to where we are today?

 

Hon. Alan D. Albright:  I'll tell you, I'm probably, in that sense -- the answer's no. I should answer your question, too, but I'm on a roll. The answer's no. But with the exception—I think I'm right—with the exception of a trademark case I had in Virginia, I never had a case, and I had one case in Wisconsin only, and I didn't like how stuff worked there very well. It didn't work in terms of the speed and some other things.

 

      But I didn't have a lot of experience with those. I had a lot of experience in the Eastern District. I had a lot of experience in the Southern District of California. I went into it pretty well thinking that local patent rules were the way to go, and what was more important to me was coming up with not just rules that worked for the court but rules that worked well for the attorneys too.

 

      I'm not saying that that's not true of other places. Like I said, I loved being in the Eastern District of Texas, for example, because I got so familiar with the rules and how things worked. But at the same time, I've enjoyed coming up with my own set of rules. I've enjoyed working with lawyers and getting their input.

 

      I think, again, the very largest reason for people having the faith to file in the Western District with me, I think, is at least partially a result of that.

 

Arthur Gollwitzer:  In recent months, the PTAB, when deciding whether or not to institute an IPR, has used its discretion to deny institution in light of the proximity of trial in a pending district court case, the speed of the docket in that case. I think at least one of those PTAB decisions was a case that was co-pending in your courtroom.

 

      Does the IPR process impact your thinking on the rules? Does the idea that the PTAB may even deny institution if the case is already pending in a fast court? Does that impact your thinking?

 

Hon. Alan D. Albright:  No. I'll tell you what impacts my thinking. It's the way I -- let me make it clear. The way I handle my docket would be exactly the identical way I would handle it if there were no PTAB process.

 

      Now, that's slightly not true in a handful of circumstances. For example, I think I had one case where a plaintiff had filed several cases in another state; I think it was California. And, then, a fairly long time after that, they filed some cases in my court, same patents. By the time they filed in my court, the IPR process was fairly longitude, and—my facts are a little shady—but as I recall, I don't even think I could have had the Markman before they had tried and resolved the case in the PTAB. That wouldn't have made any sense for me to move forward.

 

But, with the exception of that situation, my view of patent litigation is -- the PTAB is going to do whatever they do. I have no impact on it. I have no involvement in it. I don't even pay attention to it. What I care about very much—and this is the way I felt before I went on the bench—patents are provided for in the Constitution. Juries are provided for in the Constitution. I was unbelievably blessed for the president to nominate me and the Senate to confirm me to be a federal judge who presides over federal cases that include patent cases.

 

My goal is to get all of my cases resolved, not all my patent cases. My goal is to get all of my cases resolved as quickly as I can. If you do that inversely, all cases would include patent cases. It's not the other way around. I set up my system because I want -- I think the way I've set up the procedures, which is staying discovery until the Markman, I think I give a fair amount of time for people to prepare for the Markman. Everyone can ask for more time if they think they need it because of their case.

 

It gives parties the opportunity before the Markman to do the infringement contentions and invalidity contentions. It gives them the opportunity, if they want it—it's rare that they take it—but they can certainly have experts if they wanted to. Or, they could depose the inventor if they wanted to.

 

Like I said, there's no discovery. I've limited the cost of the litigation, I think, pretty substantially. I think eight months is more than fair. If people need more time, they could certainly get it if they could persuade me why they needed it.

 

I tried a bunch of these cases. I think having 12 to 16 months to prepare a patent case is plenty of time. Again, when I'm setting the trial, I'm not a dictator. I've certainly been in front of people at my job who were, but I'm not a dictator. I invite lawyers to tell me why the case might not be able to be prepared within the normal period of time I have.

 

I've tried to be as logical as possible. I have a case coming up for trial where we decided that the number of patents was too, in my opinion, substantial to have only one trial. I think we figured the trial would probably last three or four, maybe more, weeks than that. So I divided the case up into three trials. I don't think anyone was overly happy about that, but I thought it was the fairest thing for the jury to only have a certain number of patents in any one particular case and expect them to really be able to handle it.

 

I think having rules and having predictability is extremely important, but there isn't a single rule that I have that isn't open to amendment if an attorney can give me a reason to do it. I'll give you an example. I handle these cases. I remember a case where we had a problem getting some art. I don't remember exactly why, but I remember that the art was located in either a library or a college in Germany. We knew it was there, but we were having a really hard getting access to it.

 

If someone comes to me on the first day of the lawsuit and says, "Judge, we know ordinarily discovery doesn't start, but we predict this could be a specific problem. Can we start working right now to get access to that so it won't delay the process of the trial," then the answer's going to be yes because the rules are not there to prevent people from being able to prosecute or defend their case. They're there to help me handle them in an orderly manner.

 

All the way back to your question, though. The IPR is an independent avenue of relief. It doesn't impact me. My goal is to make sure if a party files a patent case in my court, it will be resolved in as fair a way as possible, and it'll be resolved, relatively speaking, in a period of time that, I think, is good for the system.

 

Hon. Ryan T. Holte:  This is Judge Holte. Not to take myself off mute and drop into your conversation like my son's afternoon time with Sesame Street and Big Bird coming into things, but just wanted to make sure that I do lay out a question for Art regarding his 2012 Engage article that's linked on the Teleforum website titled, "Local Patent Rules—Certainty and Efficiency or a Crazy Quilt of Substantive Law?"

 

      With the policy discussion now regarding local rules, Art, can you tell us a little bit about your article and for a couple minutes of discussion on the legal foundation for local patent rules?

 

Arthur Gollwitzer:  Sure. And this will lead into my next question for Judge Albright. The article I wrote was inspired by working on a case that was transferred from one court to another with seemingly similar patent rules but a very different interpretation of some of those rules. You can get the same thing when you move from a court without rules to a court with rules and vice versa.

 

      And so I started looking into the legal basis for local patent rules, and it starts with the Rules Enabling Act in 1934 that Congress empowered the Supreme Court to make the Federal Rules of Civil Procedure that we work with today.

 

      There's a rule of civil procedure that empowers courts to adopt local rules, and the concern at the time, and I think the concern still today, is that those rules be relatively uniform across the country, not change the underlying substantive law, and not be so different that they encourage forum shopping.

 

      In other instances, and hearing our conversation with Judge Albright, we're talking about his standing order, so it's slightly different than a local rule, but I suspect the goal of uniformity still applies. There's a balance. There's a tension between uniformity but the certainty and efficiency that each court is seeking in light of its local circumstances.

 

      My question, back to Judge Albright, then, is how much do you consider what's going on in other courts as you tweak your order? Are there things that you thought about doing and rejected because you thought, "Well, that might make me such an outlier that it goes beyond the spirit of what I should be doing in my own courtroom." Or, is certainty and efficiency so valuable to lawyers—I certainly appreciate that as a practicing lawyer—that it outweighs the downside of having some differences?

 

Hon. Alan D. Albright:  I've never thought about it that way. I guess I've always felt that, in a sense, I've been as democratic, with a small d, as possible in the way I've done this and having the involvement of a committee of the constituents.

 

      I guess, in the end, it's my order, obviously, but I don't think there's anything -- I think I'm also the person. I'll make suggestions for improvements. I will give the final approval to whatever improvements are made. But really what I'm operating under -- it reflects the constituency of lawyers who are most likely to be in my court doing patent cases.

 

      Also, maybe something else, hopefully, that is keeping it from the concern that you may have expressed in terms of something being provincial. My committee is not made up of just Western District lawyers. The committee has lawyers from many states, and it also includes, as I understand it, in-house counsel. And so, again, it is completely voluntary to join.

 

      I think I've done my best to give people access to any specific concern that they might have. I don't know how many federal judges get complaints—probably not many—but let me frame it more artfully. I don't get a lot of suggestions. If something comes up, it's usually me when I realize something unintended has happened and I might just want to clarify what I said.

 

      So it's really an effort -- yes, it helps me. Actually, it dramatically helps me. My schedule is very easy to follow for me. But I think it's what's best for the lawyers who are practicing in my court.

 

Arthur Gollwitzer:  Well, I think we're getting close to the question and answer time period, so I'd like to conclude by asking a question. Forgive me; it's probably a compound question. What do you see in terms of future trends for patent litigation? Can you look down the road, and do you see certain trends emerging, and do you have ideas as to how those trends may impact both your courtroom and patent litigation generally?

 

Hon. Alan D. Albright:  I'll tell you, I think what will be fascinating to me is how we integrate the Zoom process that we were sort of forced to take on. If you had come to me in January and said, "Judge, I don't really want to go to Waco." Or, "I'm in New York. Don't want to go to the Markman. Can we just do it by Zoom?" I don't think I would've even -- I probably would've laughed.

 

      Now, I think there are some real upsides to doing some hearings by Zoom. And I think if lawyers felt that Zoom hearings would be sufficient, they're certainly less expensive. I had a pre-trial hearing two weeks ago or three weeks ago where I think the clients on one side were from Holland or somewhere in Europe, and they were able to attend by Zoom.

 

      I think another great thing that Zoom is allowing us to do is -- for example, my Markman tomorrow will be by Zoom. My law clerk tells me we have 20 claim terms, which is more than we should. I've seen a couple of them.

 

I think it would be great if one law firm or the other, or both, said, "We're not paying any additional money to let one of our younger or less experienced lawyers travel with us. We'll let that lawyer handle a couple of claim terms to give them an opportunity to speak to the court that might otherwise not be available to them because it just wouldn't work to have them travel a day and travel a day back just to get ten minutes on her feet."

 

      But I think the integration of technology in the way we handle things going forward could be really awesome. I'm 99.9 percent sure I will never have a jury trial by Zoom, but I would've thought -- in February, I wouldn't even consider a bench trial by Zoom, and now I would at least be open to it.

 

      So I think the COVID horrors that we've gone through, which are all regrettable, I think it opened up our eyes a little bit, though, that there are other ways of doing things I don't think any judge would've thought of before. Who would've ever thought we would have the Supreme Court hearing arguments by teleconference? It's pretty amazing stuff.

 

Hon. Ryan T. Holte:  Thank you so much for an excellent discussion, Judge Albright and Art. With that, Nick has already announced how to dial in from your keypad with questions. Nick, we're ready to go to audience questions now. Do you want to go ahead and lead us into our first questioner?

 

Nick Marr:  Okay, let's get our first questioner on the line.

 

Nathan Lowenstein:  Hi, Judge Albright. I was curious to get your sense for -- it seems like you've litigated a lot of cases both in the Eastern District and the Western District of Texas, and I believe not many cases have gone to trial yet in your court, if I'm not mistaken.

 

I'm wondering if you have any general impressions of the differences or similarities between the jury pools in the Eastern District on the one hand and the Western District on the other?

 

      I think, by way of background, a lot of litigators believe that the Eastern District has relatively favorable juries to patent holders, and the thought is, at least so I've heard, is the Western District might be materially different in that regard. That makes sense considering that it includes Austin, but I'm curious to hear what your impressions are both as litigator and as a judge.

 

Hon. Ryan T. Holte:  Thank you for the question. Could you introduce yourself as well, real quick?

 

Nathan Lowenstein:  Oh, sure. I'm Nathan Lowenstein, a patent litigator in Los Angeles.

 

Hon. Ryan T. Holte:  Great. Thank you, Nathan. Judge Albright?

 

Hon. Alan D. Albright:  Well, let me tell you. As a patent trial lawyer, I won several cases on the plaintiff side in Austin, and I won cases on the defense side in the Eastern District of Texas. I'm less persuaded that either of the things you said are correct. What I mean by that is I think if you've got a good case on the defense side in the Eastern District, you can win. I think if you've got a good case in the Western District, you'll be successful as a plaintiff.

 

      At a higher level, I think what's interesting about -- I'll focus on my division. I tried a bunch of cases. I'm not sure that I would rather be a plaintiff or a defendant in the Waco Division in that -- I've tried a bunch of non-patent cases. My first patent trial starts a week from Monday here.

 

But you've got a really interesting mix in the 11 counties in Waco. At a high level, I think it might compare maybe to Tyler. By that, I mean there's a good university in Tyler. You've got Baylor in Waco. You've got a big medical center in Tyler. You've got a big medical center in Waco. You have certainly what you might call some rural or blue collar counties in Waco, but you do in Tyler as well.

 

      If I were selecting between the Eastern Division of Texas and the Western Division of Texas, I don't think I would be basing it on a perception of what the juries -- that they would lean one way or the other. I don't think you get that.

 

You especially don't get that in Austin, where I also will have a couple of trials. Where in Austin you have 17 counties, and Travis County, which is where Austin sits, is only one of the 17. You go 170 miles west and that's as rural as you can be. It's not east Texas rural; it's west Texas rural. So you've got Williamson County to the north and Hays to the South. Those can be fairly conservative counties.

 

I am less persuaded that there is a leaning of the jury pool in one direction or the other in either of the districts.

 

Hon. Ryan T. Holte:  Great. Well, thank you so much for that answer and the excellent question. Nick, I think we have time for one more question.

 

Nick Marr:  Okay, we'll go to one more now.

 

Matt Modderman:  Hi, Judge Albright. My name is Matt Modderman. I'm the Akron Law Federalist Society President going to clerk for Judge Ryan Holte in August of next year and then be a patent litigator for Jones Day in Cleveland thereafter.

 

My question for you: after hearing you talk so much about how great your patent law clerks are, I'm curious to know what characteristics they have or what it is they do specifically that makes them so great in your eyes?

 

Hon. Alan D. Albright:  I think you said how my law clerks? You cut out for a second. What makes my law clerks so great?

 

Matt Modderman:  Yeah, I'm curious to know what --

 

Hon. Alan D. Albright:  Oh, oh. Well, there's a special sauce in law clerks, and I think they reflect the way the judge acts in terms of demeanor and how hard they work and all that. I'm unbelievably blessed.

 

The way I pick my law clerks -- for example, I reserve one of my clerk positions for one of the top people at Baylor Law School because I'm sitting in Waco. So far, Baylor has not let me down. They have sent me two or three of their number one students in a row. Academically, they come over super prepared.

 

      Next, I would say, with my technical law clerk, he has a Ph.D. in EE. He worked as an engineer before he went to law school. He worked as a patent litigator for ten years. And the law clerk I'm getting to replace that law clerk in January is currently a patent litigator.

 

      I think whenever you get a law clerk who, for me, when you get a law clerk who understands not only what the arguments are that the lawyers are making but really the why they're making them, the end game that the lawyers are trying to accomplish by making the arguments, then you have really great law clerks.

 

      Other than that, it's just like anything else. We all work really hard. Every one of my law clerks has a gazillion things to do, and somehow, they manage to get them all done and still be nice to me.

 

      But I think getting a simpatico as quickly as possible with your judge about how he likes things done is an incredibly important thing to do.

 

Hon. Ryan T. Holte:  And, I'll just add, of course, attending the teleforums that they participate in.

 

Hon. Alan D. Albright:  Right.

 

Hon. Ryan T. Holte:  Well, Nick, does that end our time?

 

Nick Marr:  We've got one question in the queue. Do we --

 

Hon. Ryan T. Holte:  Okay, great. Yeah, let's just go one more question. Please introduce yourself before asking.

 

David Emerson:  Hi, Judge Albright. David Emerson here. I'm a patent practitioner in Berkeley, California. Just a question about what your plans are to sort of market the efforts that you've made and the results of your creating standing orders and local rules in your court to try and seed those, to pollinate them into other courts whether it be through some kind of a boot camp program for incoming judges or some other mechanism. Have you given any thoughts, and what do you think about that?

 

Hon. Alan D. Albright:  Most judges, I have found, don't have very much interest in asking other judges how to do things. What I am finding is probably the way I am cross-pollinating is -- for example, I was recently on a call, on a panel discussion like this, with three other judges and one of them is in a venue that has a pretty substantial patent docket. At the end of the call, when that judge heard how I handle different things and the benefits of them called me and said, "Hey, that all sounds interesting. Can we chat, and can you have your clerk send me stuff?"

 

      Probably the way I'll do it -- I try to attend a fair number of these kind of -- I've never said no when anyone has asked me to attend one of these type events primarily because if I have other judges on the panel, I inevitably learn something I wouldn't have thought of doing, and so I find them very beneficial and educational for me. Hopefully, other judges will hear what I'm doing and think that that might benefit for them as well to do what they're doing.

 

David Emerson:  Okay, thank you.

 

Hon. Ryan T. Holte:  Great. Thank you so much for the question, and I believe that brings an end to our teleforum today. Judge Albright, thank you so much for participating as well as Art. We really appreciate your time. This was an excellent discussion.

 

      Nick, is there anything else for the panel?

 

Nick Marr:  Thank you all, and thanks for taking a few extra minutes, especially Judge Albright. We appreciate your time. I'll just say, on behalf of The Federalist Society, I want to thank our three speakers today and our audience for calling in this afternoon.

 

      We welcome listener feedback, your feedback, by email at info@fed-soc.org. We check this regularly, so if you've got some feedback, let us know.

 

      As always, keep an eye on our website and on your emails for announcements about upcoming teleforum calls, and soon, announcements about our virtual National Lawyers Convention this fall.

 

      Thank you all for joining us today. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.