Update on Telephonic Hearings Through May 1

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 about submitting presentation materials for hearings via email.    

We suspect Josh Yi will be emailing the parties with those instructions for upcoming hearings,  but if you have any questions you can contact Josh directly.

No In Person Attendance At Hearings Until May

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

Image Credit: NY Times

Western District Continues All Trials Through May 1 Amid COVID-19 Pandemic

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 updated as things progress.

Standing Order Re COVID-19

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!

Dance Like No One is Watching

How does filing a routine notice of dismissal turn into a “deliberate attempt to circumvent the Court’s lawful order” resulting in sanctions?  Plaintiff’s colorfully worded public Facebook posts regarding the case and the Judge may have had something to do with it…

The cases are De La Vega v. Microsoft Corp. and De La Vega v. Google LLC, both filed in the Waco Division in October 2019.   Both Defendants moved to dismiss for failure to state a claim, the motions were fully briefed, and the Court set a hearing.  Nothing remarkable. At this hearing, Judge Albright agreed with Defendants but gave Plaintiff the chance to replead to fix the deficiencies.  In an interesting turn of events, Plaintiff’s counsel asked to address the Court, in response to the Court’s oral ruling, and stated that Plaintiff was essentially unable to fix the deficiencies by repleading.  In light of this, the Court orally granted Defendants’ Motions and dismissed the claims noting that a written Order would follow.  The minute entry reflected the dismissal with prejudice.

The day after the minute entry was entered, but before the Court’s written Order was entered, Plaintiff filed a Notice of Voluntary Dismissal without prejudice.  Both Defendants opposed the Voluntary Dismissal, noting that the Court’s oral ruling left no remaining claims that could be voluntarily dismissed.  The Court then issued its written ruling granting Defendants’ Motions to Dismiss with prejudice. 

The Court held another hearing whereby he questioned why Plaintiff filed a Notice of Voluntary Dismissal following his ruling to dismiss the claims with prejudice.  While Plaintiff contended that he did not understand the Judge’s ruling was with prejudice, Defendants presented contrary arguments.  The most interesting came in the form of Plaintiff’s Facebook post from the day before the Notice for Voluntary Dismissal was filed stating: “Today all my cases were grossly blatantly dismissed with the word “PREJUDICE” attached to all my law suits…”  As expected, this slightly undermined the argument that Plaintiff did not know the dismissal was with prejudice.

Microsoft moved for attorneys fees associated with responding to the Notice of Voluntary Dismissal as well as sanctions.  Finding that Plaintiff and Plaintiff’s counsel acted in bad faith by filing the Notice, the Court awarded Microsoft attorneys fees and ordered Plaintiff’s counsel to complete legal ethics courses.  The Court further banned any attorney at Plaintiff’s counsel’s law firm from filing anything in the Western District of Texas ECF system until Plaintiff’s counsel provides proof of completion of legal ethics courses to the Court.

The moral of this story: Dance like no one is watching, email like it will be read aloud in a deposition, and tweet and post like it will be read aloud to a Federal Judge in open court.

Enjoy your social media responsibly!

Note: the sanctions in these cases were directed at one specific attorney for Plaintiff, the other attorney of record was not a subject of the Court’s Order.

State of the Union – Waco Patent Litigation

Tired of political talk around the water cooler at work? Instead, talk about the current State of the Union of Waco Patent Litigation, our yearly address where we present important analytics from the previous years and take a glimpse into the year to come right here in Waco, Texas!

It has been almost 17 months since Judge Alan Albright took the Federal bench in the Waco Division of the Western District of Texas. There was much initial speculation as to the effect of Judge Albright’s appointment on the patent landscape in Waco, a jurisdiction whose total patent filings in the previous decade only amounted to the double digits.  Now, 17 months later, there is concrete data.  Let’s look at the current State of Waco Patent Litigation:

Since 2018, the District of Delaware has been the #1 most heavily trafficked venue for patent litigation filings. While the Eastern District of Texas has seen a drop in patent filings in 2018 and again 2019, as a direct result of TC Heartland, it still remains a prominent patent venue. However, in 2019, the Western District of Texas saw patent filings that threatened to catch up with the Eastern District. Ultimately, the Western District fell short by about 50 case filings.

Even more interesting is looking at the market-share that the Waco Division is occupying in the Western District. In 2018, Waco saw about 30% of the patent filings in the Western District (consider that Judge Albright was only on the bench for 3.5 months of that year). In 2019, Waco saw about 85% of the patent filings in the Western District.

The big question becomes, is this momentum continuing or has the Waco Division reach a plateau? At this point, Waco’s momentum shows no signs of stopping. So far in 2020, the Western District has eclipsed both the District of Delaware and the Eastern District of Texas in number of patent cases filed. The Waco Division accounts for 90% of those cases. Even more impressive, standing alone, the Waco Division has seen about 1.5-times more patent filings than the whole District of Delaware and over 3-times the number of patent filings than the entire Eastern District of Texas.

If this momentum continues, the Waco Division alone, and by extension the Western District of Texas, could become the most heavily trafficked patent venue in the country. Whether this trend continues for the long-haul remains to be seen, but the sequence of TC Heartland followed by Judge Albright’s appointment has created a powerful combination that has changed the landscape of patent litigation filings.

Waco Discovery Practices

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 streamline discovery post-Markman to avoid any delays.  Importantly, Judge Albright has granted pre-Markman motions for expedited discovery for limited purposes (i.e. jurisdictional discovery) or when good cause has been shown.

Prior to filing a motion to compel on a discovery dispute, lead counsel must meet and confer, and the parties must reach out to the Court to arrange a telephonic conference regarding the dispute.  Similar to the “hotline” available in the Eastern District, this practice hopes to curb the unnecessary time and expense of serial motions to compel and forces the parties to try to solve disputes themselves by only bringing the truly deserving disputes to the Court.  No one wants to have a telephone call with the Judge to explain that they were too stubborn to play by the rules.

So far, this practice seems to be effective.  With just over 300 patent cases filed since Judge Albright took the bench in September 2018, there have been about 10 motions to compel discovery. Based on experience, this is probably not due to the inherently agreeable nature of patent litigators.