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 ...
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:
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 ...
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:
Meeting ID: 161-859-1491
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:
- 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 ...
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 ...
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 ...
Another patent infringement jury trial began this morning in the Waco Federal Courthouse: Freshub, Inc. et al v. Amazon.Com Inc. et al - Case No. 6-21-cv-00511.
The Court has provided a dial-in for members of the public to call in and listen to the trial proceedings in real time:
Meeting ID: 160-731-3863
Naman Howell's very own John Palmer has the privilege of serving as local counsel in this matter. We will provide updates here during trial for those unable to listen to the entirety.
Mark your calendars: May 13, 2021 from 11:30am - 12:15pm CT
Judge Alan Albright, who oversees the nation's busiest patent docket right here in Waco, Texas, will sit down with McKool Smith Principal Kat Li, for a great discussion regarding his practices and procedures and all things patent litigation in WDTX.
Registration is free and all are invited.
This event is sponsored by the Austin Asian American Bar Association (AAABA). For more information about AAABA and its mission to serve the Asian-Pacific American community in Austin and the surrounding areas ...
The Court has charged the jury in Case No. 6:21-cv-299, Vlsi Technology Llc V. Intel Corporation.
Closing arguments are set to begin in 5-10 minutes. Each side has 90 minutes for closing.
Here is the dial-in to listen to the closings in real time.
Meeting ID: 161 923 7157
The jury has reached a verdict in Case No. 6:21-cv-299, VLSI Technology LLC V. Intel Corporation.
A Waco Texas jury found that Intel did not infringe the claims of the 2 asserted patents.
VLSI asked the jury to award over $3 billion in damages, alleging that Intel infringed two patents related to computer chip technology.
This is the second of three trials between VLSI and Intel where VLSI alleges that Intel's computer chips infringe VLSI's patents. In the first case, No. 6:21-cv-57, the Waco jury awarded VLSI over $2 billion after finding that Intel infringed the two asserted patents ...
The second trial between VLSI and Intel began this morning in the Waco Federal Courthouse: Case No. 6:21-cv-299, Vlsi Technology Llc V. Intel Corporation.
The Court has provided a dial-in for members of the public to call in and listen to the trial proceedings in real time.
Meeting ID: 161 923 7157
The Court now has a default Protective Order for patent cases. The PO can be found under "Courtroom Guidance" on the Court's website HERE.
Prior to this default protective order, Judge Albright had previously recommended that the parties use the default EDTX protective order as a starting point. The new Waco Division default protective order is similar to the EDTX order, with a few additions.
Most notably, the Waco Division PO includes both a "CONFIDENTIAL - OUTSIDE ATTORNEYS' EYES ONLY" designation as well as a "CONFIDENTIAL - ATTORNEYS' EYES ONLY" designation.
This week, Judge Albright entered a new Standing Order Regarding Motions for Inter-District Transfer. Here are the key takeaways:
- Any party who files such motion must provide the Court with a status report—no later than 6 weeks prior to the date of the Markman hearing—stating whether the motion has been fully briefed and is ready for resolution.
- Any party who has such motion pending at the time the Order was entered (March 23) and has a Markman hearing scheduled less than 6 weeks from March 23, must file this status report as quickly as is reasonable, but in no event more than 5 business ...
One of our wonderful contributors, Andy Powell, a partner at Naman Howell Smith & Lee in Waco, was quoted in Law360 discussing the impact Judge Albright has had on the patent litigation scene here in the Waco Division:
"He's very knowledgeable on patent law," said Naman Howell Smith & Lee PLLC member Andy Powell of Judge Albright. "He really knows the case law very well, and he has an absolute passion for it."
Powell, who is based in Judge Albright's Waco division and has been practicing in the Western District for nearly 20 years, said that the judge's predecessor, Judge Walter Scott ...
After more than a week of trial, the jury in VLSI v. Intel, 6:21-cv-57, handed VLSI a win, finding that Intel infringed two patents resulting in a verdict of over $2 billion.
This is Judge Albright's second patent jury trial since taking the federal bench in Waco.
The VLSI v Intel trial is underway in the Waco Federal Courthouse. If you would like to listen to a live audio feed of the proceedings, here are the details:
Meeting ID: 161 606 4451
The VLSI v. Intel trial, set to begin on Tuesday, will be postponed due to inclement weather.
Jury Selection will now take place on February 22.
Stay safe, healthy, and warm!
Now that the next Waco patent jury trial is less than two weeks away (see previous post HERE), it's time to discuss Judge Albright's proposed procedure for the upcoming jury selection. When we were invited to the courthouse to see a demonstration of the new technology (see previous post HERE), Judge Albright discussed his current plans for voir dire to ensure that all health and safety precautions are taken, noting that he is open to input from the parties as well.
Although the courtroom would allow for 42 prospective jurors in the courtroom at once, the number will be limited to ...
Judge Albright, who has presided over patent cases in multiple Divisions within the Western District of Texas, appears to have issued his first order denying a motion to transfer venue for convenience from the Waco Division to the Austin Division. Until this point, he has generally been very open to intra-district transfers for convenience, both opposed and unopposed.
Case No. 6:20-cv-108 (ParkerVision, Inc. v. Intel Corp.) was filed in the Waco Division in February 2020. On July 10, 2020, Intel moved to transfer the case under § 1404(a) to the District of Oregon or, alternatively ...
Yesterday, the Federal Circuit denied Intel's latest petition for writ of mandamus, declining to vacate Judge Albright's December 31 Order re-transferring Case No. 6:19-cv-254 (now Case No. 6:21-cv-57) back to Waco from Austin (See previous post detailing Intel's petition HERE). Thus, VLSI Technology LLC v. Intel Corp. appears to be headed to a jury in the Waco Division on February 16.
The three-judge panel consisting of Chief Judge Prost, and Circuit Judges Lourie and Chen (the same panel that granted Intel's first mandamus petition in this case - see previous post HERE), stated ...
Judge Albright graciously invited us in to his courtroom for a tour to learn about the newest courtroom technology and how it will be implemented in the coming months for trials, jury selection, and hearings.
Over the past 6 months, major upgrades have been underway to facilitate trial technology, especially in the age of COVID. There are new screens at counsel table, the podium, witness stand, jury box, and gallery that integrate video conferencing, audio conferencing, and streaming capabilities. Two cameras have been installed: one to capture the bench and the witness, and one to ...
On December 23, the Federal Circuit appeared to give Intel an early Christmas present by granting Intel’s Petition for Writ of Mandamus, vacating the previously set trial date of January 11, 2020 in Waco (see our previous post HERE regarding Intel's petition and the November 20 transfer back to the Waco Division). However, the Circuit Court was very deliberate in its limited holding and, more importantly, explicit in what it was not holding, overtly stating “we do not hold that the district court lacks the ability to effectuate holding trial in the Waco Division.”
The Federal ...
Yesterday marks the entry of the 11th supplemental order from Chief Judge Garcia regarding Court operations in WDTX during the pandemic. The evolution of the Court’s orders regarding COVID can all be accessed HERE.
The 11th Order is substantially similar to last month's order and essentially extends the status quo through January 31, 2021. As a general rule, all jury trials scheduled to begin through January 31, 2021 are continued. Bench trials may proceed if they can be conducted with appropriate safety precautions.
The Order also affirms divisional discretion to proceed ...
Today Intel Corporation filed a petition for writ of mandamus in the Federal Circuit following Judge Albright’s November 20th ruling retransfering a patent infringement suit (VLSI Technology LLC v. Intel Corp., No. 6:19-cv-00254) from Austin back to Waco for a January trial setting.
Venue Transfer History:
While this case was originally filed in the Waco Division in April 2019, Judge Albright granted Intel’s motion to transfer venue to Austin in October 2019 and retained the case on his docket (after denying Intel’s motion to transfer venue to Delaware). The case proceeded ...
Judge Albright has now entered his latest version of the Order Governing Proceedings – Patent Case: Version 3.2. This is an update from Version 3.1, posted September 22. The two most significant changes are what we anticipated, as explained in our last post: (1) non-simultaneous claim construction briefing; and (2) default limits on pre-Markman discovery. Here is a more comprehensive look at the key changes from the previous OGP version:
Case Management Conference:
Since OGP Version 3.1, the Court entered a Standing Order Regarding Notice of Readiness requiring the parties to ...
Judge Albright's newest Order Governing Proceedings for Patent Cases (version 3.2) changes Markman briefing procedure from simultaneous to non-simultaneous briefing and includes corresponding changes to the default schedule. For pending cases with a scheduling order under an older OGP version, there may be some confusion as to whether briefing is governed by the currently-entered scheduling order (requiring simultaneous briefing) or the new OGP Version 3.2 (requiring non-simultaneous briefing).
For pending cases potentially affected by this change, Judge Albright ...
An updated Order Governing Proceedings in Patent Cases (OGP Version 3.2) is set to be released shortly in the Waco Division. Expect two main changes: (1) non-simultaneous claim construction briefing; and (2) default limits on pre-Markman discovery. As always, when the final version is released, we will provide a more comprehensive breakdown of the changes.
Non-Simultaneous Claim Construction Briefing: For better or for worse, the Court has done away with simultaneous claim construction briefing! Many attorneys have a love/hate relationship with this practice so this marks a ...
The presentation of evidence in Judge Albright's first patent jury trial has officially concluded and the jury is deliberating. While we await the verdict, here are some highlights and takeaways from the last week at trial.
Final Pretrial Matters:
On the morning trial began, Judge Albright took up some final pretrial matters before bringing in the jury. This included clarification on the effect of certain motions in limine on the content of the parties' opening statements.
The parties agreed to pre-admit certain exhibits. These exhibits could be referred to ...
No infringement. A Waco Texas federal jury has determined that MV3 did not prove that Roku had infringed any asserted claims of the '223 patent.
The technology at issue in this case covered screen mirroring and screen casting. MV3 asked the jury to award it over $6 million for Roku's use of screen mirroring technology and about $35 million for Roku's use of screen casting technology. Despite this, the jury found no infringement.
Judge Albright has again confirmed that his first patent jury trial since taking the bench will proceed on October 5. In his latest Divisional Standing Order he reiterated that the Waco Division has "undertaken great efforts to ensure trials can be conducted safely" and is "confident, as things stand today, it can conduct fair trials in a safe manner."
The final pretrial conference for MV3 Partners LLC v. Roku, Inc. took place this week, with jury selection set for October 1 and trial October 5.
This Standing Order was entered in accordance with the WDTX Eighth Supplemental Order on Court ...
Judge Albright signed a new Standing Order Regarding Notice of Readiness in Patent Cases:
The Case Readiness Status Report can be found HERE , attached to the Standing Order as Exhibit A.
The new Standing Order has been added to the WDTX website under the Waco Division's Standing Orders for Judge Albright (located HERE).
Today, Judge Albright posted a revised Order Governing Proceedings – Patent Case: OGP Version 3.1. This is an update from Version 3.0, posted July 22. The bulk of the revisions apply to the Markman hearing and General Issues sections, as well as changes to the Default Schedule. Here are the key things to note:
Tech Tutorials and Conduct of Markman:
The OGP makes it clear that technology tutorials are optional. The revised language seems to indicate that, if utilized, electronic submission is preferred to live tutorials. Newly-added language encourages parties to only request a live ...
Jury selection in MV3 Partners LLC v. Roku, Inc. is set for October 1 and will mark the first jury selected for a patent trial since Judge Albright took the bench in 2018. Here are a few notable procedures for jury selection: (1) the specific Patent Juror Questionnaire; and (2) voir dire will be conducted before Magistrate Judge Manske, not Judge Albright.
Judge Albright's Standing Orders now includes a Patent Juror Questionnaire to be filled out by prospective jurors prior to voir dire. In addition to typical demographic and biographical information, the current Questionnaire ...
On October 5, Judge Albright is set to preside over his first patent jury trial since taking the bench. MV3 Partners LLC v. Roku, Inc. is not only set to be Judge Albright’s first patent jury trial, but also the first jury trial in the Waco Division since the COVID-19 pandemic essentially halted all jury trials. The trial was supposed to occur in early summer but was continued multiple times due to the pandemic.
Judge Albright has exercised his discretion per the WDTX Seventh Supplemental Order (see previous post HERE) to resume jury trials in the Waco Division. In his Divisional Standing ...
As part of the ongoing COVID-19 pandemic, we are now on the seventh supplemental order from Chief Judge Garcia regarding Court operations in WDTX during this strange time. The evolution of the Court's orders regarding COVID can all be accessed HERE.
Here are the highlights from the latest Order:
Trials Continued Through September 30, 2020:
All trials, both civil and criminal, bench and jury, currently set through September 30, 2020 are continued.
Discretion to Proceed With Jury Trials:
WDTX encompasses 68 different counties and the Court recognizes that the public health ...
Judge Albright has posted a revised Order Governing Proceedings (OGP) for Patent Cases under his Standing Orders. Here are the key changes to be aware of:
Venue and jurisdictional discovery permitted pre-Markman:
The Order previously stayed discovery until after the Markman hearing except for claim construction related discovery or exceptional circumstances. However, Judge Albright routinely permitted parties’ requests to conduct targeted venue and jurisdictional discovery in conjunction with such motions. As a result, these two categories of discovery are ...
Judge Albright has recently updated the Court's website to include examples of previous technology tutorials that he has found to be particularly helpful. These should provide an example for counsel looking to craft a tech tutorial in Judge Albright's Court in the future.
If presented well, tech tutorials can provide a very useful overview of the underlying technology to the court. If presented poorly, they can be a waste of time or even set a negative tone for the Markman that counsel probably wants to avoid. Although not required, Judge Albright’s standing order governing patent ...
As of March 24, 2020, Judge Albright has notified us via the patent work group that all of his civil hearings will still proceed by telephone (at least until May 1), unless he issues an Order on a specific case/hearing.
The Court is not anticipating using video or Webex at this time given the coordination and connectivity challenges those items can present. Depending on the reliability of the Court’s conference line, the Court may ask the parties to host the teleconferences and will contact the parties in advance should that occur. In addition, the Court will be providing instructions ...
We have received notice from Judge Albright that there will be no in person attendance at civil hearings in cases in his court until May 1. A General Order will likely issue in the coming days to commemorate this. We will keep everyone updated as the situation evolves.
As can be seen based on the number of Orders issuing from the Court each day, the Court is working very hard to not let the current uncertainty disrupt the progression of its pending cases.
Please stay safe and healthy everyone and #flattenthecurve
It has issued: The Waco Division's Standing Order Regarding Coronavirus (COVID-19) and Court Proceedings (full text of the Order below).
At this uncertain time, we should all be mindful of the Court's desire to accommodate other counsel's and party's situations and remember to be courteous to each other as we all attempt to balance the importance of public health with our clients' needs. And please wash your hands!
The Chief Judge of the Western District of Texas just issued an Order Regarding Court Operations Under the Exigent Circumstances Created by the COVID-19 Pandemic.
Of note: "All civil and criminal bench and jury trials scheduled to begin on any date from now through May 1, 2020, are continued, to a date to be reset by each presiding judge." (See below for entire text of the Order).
It is too early to tell how that will effect the calendar in the months to come, especially given the speedy trial clock attached to criminal trials which will put them at the forefront of the schedule. We will keep you ...
With the exception of discovery necessary for claim construction, the default patent scheduling order in Waco stays all other discovery until after the Markman hearing. This seems to offer protection against costly discovery on the front-end, until a crucial and determinative point is reached in the case: claim construction.
However, for those parties worried that this process could delay proceedings, pre-Markman discovery is permitted by agreement of the parties or by request, when the circumstances demonstrate the necessity. There are also other safeguards in place to ...
The past year and a half has been filled with speculation as to whether Waco would become the next Marshall, or whether the hype would die down and people would only remember the town for Fixer Upper.
Now that Waco has actually established itself as a patent litigation hotbed, it is important to see what makes the Waco Division unique when trying a patent case. Specific areas of these rules, practices, and procedures will be examined in greater detail in future posts, but here are some of the highlights:
Local Rules and Standing Orders:
A quick Ctrl+F in the Local Court Rules of the Western ...
With over 50 years of combined experience with federal court practice in the Western District, our team boasts former federal clerks and outstanding litigators with unrivaled experience in local federal litigation. Our contributors are all located in the Waco office of Naman, Howell, Smith & Lee. With an office just blocks from the Waco courthouse, we have our finger on the pulse of the emerging patent litigation practice in the Waco Division of the Western District, and we want to share that expertise with you.
- WDTX - Amended Order Assigning the Business of the Court - 12/16/22
- New WDTX Order Begins Assigning Patent Cases Filed in Waco to Judges Throughout the Western District...What Next?
- Revised Order Governing Proceedings - OGP 3.5.1
- New Order re Filing Documents Under Seal and Redacted Public Versions
- New Order Governing Proceedings - Patent Cases - OGP Version 3.5
- Live Audio Feed for Jury Trial - Profectus Technology LLC v Google LLC
- 2nd Amended Standing Order Re Motions for Inter-District Transfer
- New Standing Order Re Joint/Unopposed Requests
- New Order Governing Proceedings - Patent Cases - Version 3.4
- Judge Albright's New Standing Orders