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.

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:

Number: 1-669-254-5252

Meeting ID: 160-731-3863

Passcode: 300137

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, please visit https://www.austinaaba.org/.

If you are unable to attend, be sure to check back here after the event for coverage of all of the important information you may have missed. Subscribe to our blog to get notified about all things Waco patent litigation!

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.

Number: 1-669-254-5252

Meeting ID: 161 923 7157

Passcode: 103154

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 third case, Case No. 1:19-cv-977 currently set for trial in June in Austin, involves three additional patents. VLSI moved to transfer the final case back to Waco as well, however Judge Albright has deferred ruling until the trial date is closer to determine when the Austin Courthouse will be re-opening.

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.

Number: 1-669-254-5252

Meeting ID: 161 923 7157

Passcode: 103154

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:

1. 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.
2. 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 days after March 23.
3. The Court "will not conduct a Markman hearing until it has resolved the pending motion to transfer." Either an Order on the motion will be promptly entered, or the Markman hearing will be postponed.
4. A party may not file a motion for inter-district transfer within 8 weeks of a scheduled Markman hearing without leave of court and a showing of good cause.

The full Standing Order can be found HERE.

Venue transfers, both inter-district and intra-district (especially between the Waco and Austin Divisions) are one of the most common motions filed in Judge Albright's Court. They are also the most highly publicized and the most often appealed to the Federal Circuit. In recent weeks, the Federal Circuit has handed down multiple opinions regarding transfer motions in Judge Albright's Court, specifically addressing the need for pending motions to be resolved prior to the Markman hearing.

Below is the full text of the Standing Order:

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 Smith Jr., barely touched patents: Over 32 years, there were only 45 patent cases before Judge Smith.

"The number of patent cases that have been filed here has just gone up astronomically," Powell said.

Full Article Here: Judge Albright Now Oversees 20% Of New US Patent Cases

Judge Albright now presides over 20% of the nation's patent litigation cases. In 2020, almost 800 new cases were filed in Judge Albright's court, the largest number of any judge in the country. Judge Gilstrap had the second largest number of new cases filed in his court last year with 252 new filings. This means Judge Albright saw more than triple the number of new cases as Judge Gilstrap last year. In fact, the total number of cases filed in Judge Albright's court in 2020 is only two less than the total number filed in Judge Gilstrap's court for 2018-2020 combined.

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:

Dial-in: 1-669-254-5252

Meeting ID: 161 606 4451

Passcode: 186276

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!