Criticism of Judge Albright Looms Large in Tillis Letters to Hirshfeld, Chief Justice Roberts

By Gene Quinn & Steve Brachmann
November 3, 2021

“We happen to know Judge Albright’s courtroom better than most, and find this obsession with painting him as some uncontrollable maverick as wholly unjustified based on what is actually happening in his courtroom, in his rulings, and in a district where virtually all implementers have deep business interests.”

Thom TillisOn November 2, Senator Thom Tillis (R-NC) sent a pair of letters regarding issues in district court patent litigation—one addressed to Drew Hirshfeld, performing the functions and duties of the Director of the U.S. Patent and Trademark Office (USPTO), and another letter co-written with Senator Patrick Leahy (D-VT) addressed to Chief Justice John Roberts of the U.S. Supreme Court. While never mentioned by name, U.S. District Judge Alan D. Albright is unmistakably the subject of both letters, which expressed serious concerns about “unrealistic trial dates” and “open solicit[ation]” of patent cases from a single judge in the Waco Division of the Western District of Texas.

Tillis to USPTO: Judge Albright’s Trial Deadlines Too Unrealistic for Fintiv Framework

Senator Tillis’ letter to Hirshfeld focuses on the application of the Fintiv framework on discretionary denials of inter partes review (IPR) proceedings at the Patent Trial and Appeal Board (PTAB) based on parallel proceedings in U.S. district court. While Tillis agreed with the policies underpinning the Fintiv framework, which promote efficiency in litigation by denying IPR petitions if the parallel court proceedings are in an advanced stage, he argued that the PTAB had a historical practice of crediting unrealistic trial deadlines in assessing the proximity of a scheduled trial date to the PTAB’s final decision in an IPR.

“The negative consequences are most pronounced” in the Waco Division of Western Texas, Tillis wrote:

The sole judge in that division schedules very early trial dates for all patent cases assigned to him. Often, these dates prove to be not just unrealistic, but they [sic] impossible to fulfill as multiple conflicting trials are frequently scheduled to occur on the same date before the same judge in the same courtroom.

Tillis also made clear in his letter that the judicial conduct of the unnamed Judge Albright was to blame for the negative situation he perceives, and noted that the current Fintiv framework requires administrative patent judges (APJs) at the PTAB to take scheduled trial dates at face value. The issue is particularly vexing, Tillis argued, because of Judge Albright’s record on motions to transfer. Noting multiple successful appeals for mandamus relief at the U.S. Court of Appeals for the Federal Circuit, which has excoriated Judge Albright in the past regarding his handling of motions to transfer patent cases to other venues, Tillis argued that Judge Albright has ignored binding case law and abused his discretion as a U.S. district judge. The fact that the Federal Circuit has granted 15 such petitions for mandamus relief within two years has “cast grave doubt on the reliability of the Waco Division’s trial schedules and claims regarding efficiency of adjudication.”

Senator Tillis fails to appreciate, or even acknowledge, that a fast-approaching trial date is a meaningful tool for the encouragement of settling disputes. Thus, a fast-approaching trial date is not the negative that Tillis suggests, but rather is perfectly reasonable. Moreover, it is hardly unprecedented in the patent litigation space to have fast trials. The International Trade Commission (ITC) famously handles patent litigation within 12 to 18 months. So, truthfully, Senator Tillis should be questioning Chief Justice Roberts as to why other district court judges are incapable of setting fast-approaching patent trial dates as does Judge Albright.

Recall that in a previous era, not so long ago, when the relative bargaining positions were somewhat equivalent between patent owner and alleged infringer, deals between adversaries were commonplace. That is because the law was set to encourage parties to resolve disputes on their own. Today, in a world where patent hold-out exists, there is no right to an injunction, and implementer actions calculating efficient infringement, there is little incentive for implementers to make a deal to resolve a patent dispute. If they win in only one tribunal at one time at one level the case is over, and there is no real threat of injunctive relief. Meanwhile, the patent owner must win at every tribunal, every time, on every level and still does not have a property right because the right is not exclusive (i.e., no right to injunction) and the patent can be challenged literally until the last day it is enforceable (i.e., title never quiets). This efficient infringement, which has become more aptly characterized as predatory infringement, led to widespread intentional infringement, a fact recently even appreciated by the Federal Circuit and increasingly understood by German courts, which have not been kind in their rulings to unwilling licensees.

So, a seasoned litigator like Judge Albright who litigated for many years prior to being appointed to the bench, would easily understand that a fast-approaching trial date is in the best interest of the administration of justice, at least if resolving disputes is your idea of the administration of justice. And any litigator who has ever spent any amount of time in a courtroom knows that judges always do what they can to encourage parties to make the issuance of a ruling unnecessary, whether that be an interim ruling that deals with a disputed issue, or a final ruling that wraps up the entire dispute.

As far as the Federal Circuit stepping in to issue mandamus 15 times in recent months in order to overrule the unnamed Judge Albright on venue transfer motions, the fact that Tillis characterizes Albright’s rulings as an abuse of discretion does not make it so. What Tillis obviously does not appreciate, or discuss, is the fact that the Federal Circuit has itself egregiously overstepped and ignored its own well-established mandamus precedent in order to move cases out of Albright’s courtroom. Indeed, the Federal Circuit is ignoring the plaintiff’s choice of venue, and ordering Albright to transfer even when the defendant has provided literally no evidence that any witness has refused to appear in Texas. Absent evidence, why doesn’t the plaintiff’s choice of venue prevail? That is a question the Federal Circuit doesn’t answer, and can’t, because they are supposed to be reviewing these decisions for an abuse of discretion, and not in the first instance. That they would decide differently does not mean Judge Albright abused his discretion—that is Civil Procedure 101, and lost on the Federal Circuit, and apparently also on Senator Tillis.

While Senator Tillis’ letter doesn’t explicitly suggest that the PTAB’s Fintiv analysis should mirror the Federal Circuit’s assessment of Judge Albright’s trial schedules, he did note language from the Federal Circuit’s decision this October in In re: Juniper Networks which said that the “proper analysis” for making time-to-trial determinations considers “the actual average time to trial rather than aggressively schedules trial dates.” (emphasis added by Sen. Tillis) Citing to Juniper Networks and In re: Google, decided this September, Tillis further questioned Judge Albright’s time-to-trial analysis as speculative for relying on median time-to-trial statistics and caseloads to determine court congestion. While the Federal Circuit has said that median time-to-trial statistics is the most speculative factor, actually using data to reach a conclusion simply cannot be an abuse of discretion.

Tillis’ letter to Hirshfeld concludes with a request that the USPTO conduct a study to review what he believes are unrealistic trial dates set by the Western District of Texas to provide a justification for “the continued reliance on the demonstrably inaccurate trial dates set by the Waco Division.” Tillis requested that study findings be presented and Fintiv reforms be implemented by the end of the year, which has the feel of this being more of a demand than a request, and the feel of a sheriff telling a mob shouting “hang him!” that, “No, first we are going to give him a fair trial, and then we are going to hang him!” In other words: “USPTO, study Fintiv first, and then conclude that you shouldn’t rely on Judge Albright’s trial dates.”

Leahy and Tillis Ask Roberts to Propose Legislative Fixes

The second letter, co-signed by Sen. Leahy, raises similar concerns about Judge Albright’s judicial conduct with Chief Justice Roberts and how those activities have contributed to a dramatic increase to the Waco Division’s patent caseload. Although the entire Western District of Texas only heard an average of one patent case per year in 2016 and 2017, Judge Albright’s docket alone rose to more than 800 cases in 2020. Tillis also indicated that Western Texas is on track to see more than 900 case filings during 2021, which would represent one quarter of all patent case filings in U.S. district court for the year.

The concentration of patent litigation is no accident. We understand that a single judge in this district has openly solicited cases at lawyers’ meetings and other venues and urged patent plaintiffs to file their infringement litigations in his court.

Why this is surprising or a shock to Senators Tillis and Leahy is rather a mystery. Alan Albright was a highly experienced patent litigator prior to being confirmed to the bench. Since joining the Western District of Texas, Judge Albright is getting patent cases because the single most important thing for any litigant, whether plaintiff or defendant, is that the judge understands and wants patent cases. There are many judges throughout the country who do not want patent cases and have no trouble telling attorneys that they do not like or want patent cases. So, why are Tillis and Leahy concerned with a judge who actually acknowledges that he enjoys patent cases? Why are Tillis and Leahy concerned about a judge who has an aptitude and affinity for patent cases?

Forum shopping that allows plaintiffs to effectively choose their judge before filing creates an appearance of impropriety that damages the reputation of the federal judiciary, according to Senators Tillis and Leahy, but what about the motions to transfer? Why aren’t the motions to transfer similarly problematic? The requests to transfer are always to district courts that have a track record of philosophical alignment with implementers and against patent owners. There is nothing wrong with a judge having an honest viewpoint, but the plaintiff is supposed to be the one who gets to choose the forum unless the forum is inconvenient as understood based on legal precedent. And with the Western District of Texas having perhaps the most technically sophisticated courtroom in the country, Judge Albright doing hearings and trials via Zoom to accommodate parties and the public, and much if not all of the evidence being electronic and capable of being anywhere with a key stroke, how is it actually and factually possible for Judge Albright’s rulings to be an abuse of discretion? And if they are, doesn’t that suggest that the Federal Circuit test is outdated and not keeping up with technical realities, which we all know is true but for some reason won’t say or argue because the Federal Circuit is on some vendetta against Judge Albright.

Instead of praising Judge Albright and encouraging other judges to become as tech savvy and litigant friendly, Tillis and Leahy urged Chief Justice Roberts to direct the Judicial Conference of the United States to study actual and potential abuses of district court rules regarding judicial assignments and venue for patent cases. The Senators also asked for a report suggesting legislative recommendations to prevent similar problems from arising in the future by next May.

Since joining the federal bench after a career as a patent litigator, Judge Albright has become an incredibly important figure in U.S. patent law because of the rapid increases to his docket. A recent keynote speaker at IPWatchdog LIVE this September, Judge Albright has been developing a reputation as a judge who advocates for transparency and accountability in proceedings at his court. He has responded to the Federal Circuit’s orders of mandamus relief with a series of standing orders affecting case scheduling in an attempt to accommodate the appellate court’s concerns. So, we happen to know Judge Albright’s courtroom better than most, and find this obsession with painting him as some uncontrollable maverick as wholly unjustified based on what is actually happening in his courtroom, in his rulings, and in a district where virtually all implementers have deep business interests.

As we have recently opined, “the Federal Circuit’s obsession with Judge Albright is becoming increasingly bizarre” given how many Rule 36 summary affirmances that court issues in cases deserving a ruling on the merits, especially given the deference to district court decisions that appellate courts are supposed to observe when reviewing motions to transfer. That makes it all the more troubling that Sen. Tillis, who has himself been occupying a more influential role in the U.S. patent system in recent years, would take the Federal Circuit’s issues with Judge Albright at face value without a more nuanced understanding of the aspects of the Western District of Texas that make it highly compatible with patent cases, including a burgeoning high-tech sector in the city of Austin and the sheer size of San Antonio, where many patent defendants operate a regular and established place of business for purposes of the patent venue statute at 28 U.S.C. § 1400(b).

 

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded IPWatchdog.com in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Gene Quinn

Steve Brachmann is a freelance journalist located in Buffalo, New York. He has worked professionally as a freelancer for more than a decade. He writes about technology and innovation. His work has been published by The Buffalo News, The Hamburg Sun, USAToday.com, Chron.com, Motley Fool and OpenLettersMonthly.com. Steve also provides website copy and documents for various business clients and is available for research projects and freelance work.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 16 Comments comments. Join the discussion.

  1. Pro Say November 3, 2021 6:51 pm

    It has to be asked: Has Tillis been infected . . . with the innovation-crippling . . . Leahy anti-patent disease?

  2. Anon November 3, 2021 7:16 pm

    As noted elsewhere, the impetus in the letter by the Senator’s appears to be a hit piece written by (largely) anti-patent academics.

  3. Capt. Obvious November 3, 2021 10:35 pm

    “Senator Tillis fails to appreciate, or even acknowledge, that a fast-approaching trial date is a meaningful tool for the encouragement of settling disputes. Thus, a fast-approaching trial date is not the negative that Tillis suggests, but rather is perfectly reasonable.”

    But, that’s not the point. Tillis is informing the PTO that Albright’s trial dates are simply fake news. Albright is not able to keep any of them as initially proposed (despite his stubborn practice to continue with unrealistic scheduling to impress the PTAB and draw more cases to Waco). He simply can’t do multiple Markman Orders and patent trials per day with 25% of the country’s patent docket (and growing).

  4. Kevin Nichols November 3, 2021 11:24 pm

    Very good article. I’m from NC and have seen other bizarre Tillis ‘concerns’ . This does not surprise me. One quick google (pun intended) and anyone can see that Albright Is known for his ability to navigate highly technical patents. Did Tillis and Leahey even know him at all or look up his Cv? Or did some “constituent” ask for their assistance?

  5. makes u wonder November 4, 2021 6:47 am

    A long drawn out patent case only benefits the the large, cash advantaged, corporations that wish to invalidate a patent. Unsurprisingly, these same corporations, probably make large political donations and are armed with high powered lobbyists. A fast resolution to a patent case is in the interest of the patent holder, as the clock starts ticking once the patent is granted. Ask Netlist Inc. They have had to defend their patents, in some cases for over a decade and counting. They involve some of the biggest players in their business sector. Imagine what that does to a business that has something meaningful to bring to market.

  6. Dave November 4, 2021 7:03 am

    Judge Albright is doing an amazing job! Yet he gets criticized for being efficient. Keep doing what you do. The small companies with patents that are being stolen by large Corporations appreciate you.

  7. M. David Hoyle November 4, 2021 8:37 am

    Very excellent article Gene and Steve! Very well written and spot on!! Why isn’t there other Senators asking questions about all the other Judges not following Judge Albright’s example of defending Due Process????

  8. John White November 4, 2021 8:43 am

    So, Judge Albright makes a promise that, unless dismissed, a patent owner will get a jury trial within a reasonable time span, and this is a problem? This is crazy. Simply crazy.

  9. Supportive November 4, 2021 10:09 am

    The public and particularly the inventors must rally to the defense of Judge Albright. Speak out in support of Judge Albright. He is being criticized for supporting American innovation. Keep up the good work, Judge Albright.

  10. Model 101 November 4, 2021 11:42 am

    Compare Judge Koh to Judge Albright. Makes me think that there is a huge problem at the very top level when the IP Subcommittee writes letters like this.. Crazy!

  11. Anon November 4, 2021 12:49 pm

    Capt. Obvious @3,

    I took your statement of “Tillis is informing the PTO that Albright’s trial dates are simply fake news.” to heart, and reread the letter.

    Turns out that the letter to Hirschfield is the one that needs to be read, as Tillis does not include the same views in his letter to Justice Roberts.

    Thank you for making that point.

  12. CW5 November 4, 2021 3:51 pm

    I wonder when Ted Cruz will start to defend Judge Albright from his anti-innovation colleagues in the Senate.

  13. Model 101 November 4, 2021 7:13 pm

    Most judges are crooks..and they’re complaining about Judge Albright?

    Something is very wrong!!

  14. Anon November 5, 2021 8:05 pm

    There are ‘numerator’ and ‘denominator’ issues with any attempt to equate scheduled timing with actual timing.

    One need look no further than the article at: https://www.ipwatchdog.com/2021/11/04/patent-litigation-in-the-united-states-1980-to-2020/id=139510/

    There, one easily sees — as is portrayed to be quite common, and NOT just in the patent litigation sphere — scheduling as compared to trials actually undertaken show a huge disparity.

  15. Jonathan R Stroud November 8, 2021 2:25 pm

    It strains credulity to defend letting parties choose which particular judge out of the 600+ Federal Judgeships in the nation to appear before. This isn’t even forum shopping, it’s single judge-shopping. Regardless of how you feel about any particular judge, forum, or set of local rules, it’s just not what our system of justice ever intended.

  16. Anon November 8, 2021 7:11 pm

    Mr. Stroud, unless of course Congress passes a bill aimed to do (nearly) that in their “Patent Experts” package (as noted on that other blog), eh?

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