On November 18, 2022, Judge Alia Moses became Chief Judge of the Western District of Texas. Prior to this, on November 15, 2022, outgoing Chief Judge Garcia entered an Amended Order Assigning the Business of the Court that appeared to assign "All cases and proceedings in the Waco Division" to Judge Albright, thus superseding the previous July 25, 2022 Order (see previous post HERE) randomly assigning patent cases filed in Waco to one of the 12 District Judges across the Divisions.

However that Order has now been replaced. On December 16, 2022, Chief Judge Moses entered a new Amended Order Assigning the Business of the Court, ordering that "Patent cases will be assigned as ordered on July 25, 2022 in the Court’s Order Assigning the Business of the Court as it Relates to Patent Cases, with the exception that no further cases will be assigned to Senior Judge Frank Montalvo, and until further order of the Court."

The Western District of Texas now has a new policy pertaining to all newly filed patent cases in the Waco Division.  The Order says that all civil cases involving patents, filed in the Waco Division on or after July 25, 2022, shall be randomly assigned to one of the 12 District Judges across the Austin, Del Rio, El Paso, Midland-Odessa/Pecos, San Antonio, and Waco Divisions.

At this point, there are a lot of logistical unknowns and the long term effects of this Order are unclear, especially since there is currently no uniformity of patent procedures within the District.  

One option is for WDTX to adopt Judge Albright’s OGP, Scheduling Order, and Standing Orders relating to patent cases.  Another option is to promulgate District-wide patent local rules similar to EDTX or ND Cal.  This would provide some procedural consistency within the entire District, which may alleviate some of the perceived uncertain effects of this Order as well as alleviate any perceived “forum-shopping” within the District.

Another option is for the other divisions to utilize special masters and/or technical advisors to handle Markman hearings and other highly technical aspects of patent litigation cases. A District-wide pool of approved special masters and/or technical advisors could also add to consistent treatment of patent cases throughout the District.

Additionally, it will be interesting to see the effect that this Order has on inter-district transfers.   Some divisions have a very heavy criminal docket, which could mean that patent cases in that division would not go to trial as quickly. We will pay special attention to upcoming cases to see if factors like that are used to justify inter-district transfers since administrative difficulties and judicial efficiency are included in the 1404(a) factors.

There is a meeting of Judge Albright’s working group in late August and we anticipate that these issues will be a topic of discussion. 

What's Next?.... We will be closely monitoring these developments over the next few months and will keep you updated.

Judge Albright has slightly revised his Order Governing Proceedings in Patent Cases. The newest Order (OGP 3.5.1) modifies the most recent Order (OGP 3.5, entered on October 8, 2021 - see previous post HERE).

The revisions are almost exclusively grammatical, not substantive (which explains the naming convention as OGP 3.5.1, not OGP 3.6 and explains the removal of the footnote retroactively applying it to cases with Markman briefing within 30 days of the Order).

The four"substantive" changes are noted below, with highlighting indicating the new additions:

Judge Albright has entered a new Standing Order Regarding Filing Documents Under Seal and Redacted Public Versions. The Order is almost identical to the previous order from February 2021, with the addition of this language:

"When this Court enters an order resolving a motion in which one or more of the parties filed briefing under seal, the Court will enter its order under seal. The movant shall follow the above protocol and file a publicly available, redacted version of the Court’s sealed order within seven days after the Court enters the sealed order."

Judge Albright entered a revised Order Governing Proceedings - Patent Cases: OGP Version 3.5. Some notable changes include:

Page limits:

There is still no limit on the number of motions for summary judgment, Daubert motions, or motions in limine that can be filed. However, the Court has added page limits for Daubert motions and MILs. Absent leave of Court, the cumulative page limits for opening briefs are:

• All Motions for Summary Judgment: 40 pages per side;
• All Daubert motions: 40 pages per side;
• All Motions in Limine: 15 pages per side.

Responsive briefs for MSJ, Daubert, and MIL briefs are limited to the pages utilized in opening briefs or by the local rules, whichever is greater. Reply brief page limits shall be governed by the local rules.

Discovery Disputes:

If the parties are at an impasse after lead counsel have met and conferred, the requesting party shall email a summary of the issue(s) and specific relief requested to opposing counsel. The email shall not exceed 500 words and shall include all counsel of record. The responding party shall have three business days thereafter to provide an email response, also not to exceed 500 words. In situations where multiple items are at issue in the dispute (such as responses to interrogatories or categories of document production), the Court encourages the parties to provide their submission in a table format (also not more than 500 words per side), which identifies the disputed issues and specific relief requested.
Once the opposing party provides its response, the requesting party shall email the responsible law clerk (or the following email address if the assigned law clerk is not known: TXWDml_LawClerks_JudgeAlbright@txwd.uscourts.gov) a combined email with the summary positions from both sides. Thereafter, the Court will provide guidance to the parties regarding the dispute, or arrange a telephonic hearing if the Court determines that additional argument would be of benefit.

Motions to Transfer:

The Reply deadline is now 14 days after the Responsive Brief (previously 7 days).

Courtesy Copies of Briefing for the Court:

For Markman briefs, MSJs, and Daubert motions, the parties must jointly deliver to Chambers one paper copy printed double-sided of the Opening, Response, and Reply briefs, omitting attachments, at least 10 days before the hearing. Plaintiff shall be responsible for delivering a combined set of paper copies to chambers, unless there is an agreement to the contrary.

Each party shall also provide an electronic copy of the briefs, exhibits, and the optional technology tutorial via USB drive (previously there was an option to upload copies to Box).

New General Issues:

10. When filing the Joint Claim Construction Statement or proposed Protective Order, the parties shall also email the law clerk a Word version of the filed documents.

11. For all non-dispositive motions, the parties shall submit a proposed Order. The proposedOrder shall omit the word “Proposed” from the title.

The patent jury trial for Profectus Technology LLC v. Google LLC - Case No. 6:20-cv-101 has begun in the Waco Division. As per the Court's typical procedure, a live audio feed is available for the public to listen to the trial proceedings. The dial-in information is:

Number: 1-669-254-5252

Meeting ID: 161-859-1491

Passcode: 823937

One tap mobile :

    US: +16692545252,,1618591491#,,,,*823937#  or +16692161590,,1618591491#,,,,*823937#

Today, Judge Albright entered his Second Amended Standing Order Regarding Motions for Inter-District Transfer, which replaces the previous June 8 Order.

The Second Amended Order still requires a party who has filed a motion for inter-district transfer to provide the Court with a report regarding the briefing status prior to the Markman hearing, but with a few changes:

1. A party must file the status report with respect to whether the motion has been fully briefed and is ready for resolution no later than four weeks prior to the date of the Markman hearing (amended from six weeks in the prior order).
2. If, by one week before the Markman hearing, the Court has not ruled on a pending inter-district motion to transfer, the moving party is directed to email the Court’s law clerk and the technical advisor (if appointed) to indicate that the motion to transfer is pending.

Below is the text of a portion of the Second Amended Order with the amendments highlighted. The full Standing Order can be found HERE.

Judge Albright has entered a new Standing Order Regarding Joint or Unopposed Request to Change Deadlines.

Any request to extend a deadline or amend a scheduling order will be automatically granted as long as: (1) it is unopposed or agreed; and (2) it does not change any hearing/trial date or any final submission to the Court related to a hearing/trial.

The parties must file this as a Request instead of a Motion.

Today, Judge Albright entered a revised Order Governing Proceedings in Patent Cases: OGP Version 3.4. This latest revision incorporates some of the Court's newest Standing Orders that have been entered this month (see previous post HERE). Some other notable changes include:

Order of Markman Briefing:

The Court has switched the order that the parties file their claim construction briefs. Defendant now files the opening claim construction brief, Plaintiff files a response, Defendant files a reply, and Plaintiff files a sur-reply.

Improper Deposition Objections:

The Court has added a new item under "General Issues" stating that:

"Speaking objections during depositions are improper. Objections during depositions shall be stated concisely and in a nonargumentative and nonsuggestive manner. Examples of permissible objections include: “Objection, leading,” “Objection, compound,” “Objection, vague.” Other than to evaluate privilege issues, counsel should not confer with a witness while a question is pending. Counsel may confer with witnesses during breaks in a deposition without waiving any otherwise applicable privilege."

Public Hearing Zoom Link:

Unless the Court indicates otherwise, the following Zoom information shall be used for all non-private hearings. The public is allowed to attend non-private hearings.

https://txwd-uscourts.zoomgov.com/j/16057076711?pwd=WHljN0h3Yk03K3JLUTZ2a0tTMitPZz09
Meeting ID: 160 5707 6711
Password: 873559
One tap mobile: +16692545252,,16057076711#,,1#,873559#

Standing Order for Discovery Hearings in Patent Cases:

Today, Judge Albright entered a new Standing Order for Discovery Hearings in Patent Cases. No later than 7 days after a discovery hearing, the prevailing party must submit a proposed order briefly summarizing the dispute and the parties' understanding of the Court's ruling. If the parties cannot agree on the language in the proposed order, they may submit respective proposed orders to the Court for resolution.

The Court has noted recently that that many discovery hearings involve the same disputed issues. This new procedure will provide a written order memorializing the Court's ruling. Parties who later have the same discovery dispute will then benefit from the Court's previous rulings which will hopefully decrease the number of discovery hearings regarding the same issues.

Amended Standing Order Regarding Notice of Readiness for Patent Cases - Version 2.2:

Yesterday, Judge Albright entered an Amended Standing Order Regarding Notice of Readiness for Patent Cases. The major amendment involves situations where there are "CRSR Related Cases", defined as cases that (1) are filed within 30 days after the first case is filed; and (2) share at least one common asserted patent.