A Q&A with Judge Alan D Albright – Part 1

Since Judge Alan D Albright (yes, there is not a period after the “D” in Judge Albright’s name) was appointed to the Waco Division of the Western District of Texas, Judge Albright has put Waco on the map as a mecca of patent litigation. Because Judge Albright’s tenure on the bench is still relatively in its infancy, many of his ideas and views are not fully fleshed out in judicial opinions. Additionally, since most (if not all) discovery related issues are resolved via teleconference without an issued order, many discovery issues never reach the public’s knowledge.

What follows is an interview with Judge Albright where I attempt to shed some light on some of these areas and provide useful insight for litigators practicing before Judge Albright.

MS: We’ve been living under the constraint of COVID-19 for several months now. How has that impacted the Court’s practices?

JUDGE ALBRIGHT: Well, it has obviously affected trials and in-person hearings. I’ve had to stop all jury trials for the time being and it has limited our ability to conduct in-person hearings because we don’t want to make lawyers travel across state lines if we don’t have to. It has made us more reliant on technology, like Zoom.

But I will say this. I think we were pretty prepared because we already do so many things via telephonic hearings, rather than in person, such as case management conferences and discovery related issues, so in that respect, it hasn’t affected us that much.

MS: How effective is ZOOM as a platform for conducting hearings? Do you prefer it over teleconference?

JUDGE ALBRIGHT: I think it is pretty effective, and I would say it is 90% as effective as being there in person, assuming we have a good connection. Sometimes we’ve had trouble hearing some attorneys while using ZOOM, but most of the time, it has worked great. I think for more substantive hearings, like Markman or 12b type motions, Zoom is more effective than telephonic. However, for things like case management conferences or discovery hearings, I prefer and think telephonic hearings are easier and faster.

MS: What advice to you have for attorneys when they have a Zoom call with you?

JUDGE ALBRIGHT: I definitely have some. [reading from a list he keeps] Know what is in your screen. For example, turn off the fan in your background, don’t read and slow down…those two things are related. If you are reading, you are probably going too fast, but don’t read regardless. Turn the lights on in your office or you can’t be seen.

I think what I would do, if I was an attorney, is to tell my co-counsel to watch me on Zoom, whether I’m talking or not, and if I’m doing something silly, to let me know. Things people do without thinking can be very distracting while I’m listening to the hearing.

In fact, a few days ago, my clerk pinged me and told me my camera angle was terrible. So, in short, it’s nice to have someone on your team to help with those types of things.

MS: You still have upcoming patent trials in October. What is the Court doing to ensure safety?

JUDGE ALBRIGHT: What I would like to do is emulate what other businesses are doing to keep people safe, like HEB or Walmart, and use the same safety precautions they are using, such as blocking screens between people, such as plastic or something. It would keep the witness on the stand separated from the jury, the lawyers, and me. I think we will socially distance the venire panel and any audience members, if any. We can also limit the number of lawyers in attendance sitting at counsel table. And attorneys who are not essential can sit in the rows behind counsel table.

We are still working on how attorneys will question witnesses. Perhaps we will allow counsel to question witnesses from counsel table instead of asking questions from the podium. Also, we will go paperless as far as exhibits go, and we will of course take peoples’ temperature before they are allowed into the courthouse.

Another big question: are there going to be jurors who will be unhappy being [in the courthouse] if there are other individuals there who aren’t wearing a mask all the time? That’s something we will have to address as well.

MS: Do you believe we should continue to press for having jury trials, or postpone until a later date or until a vaccine for COVID-19 is created?

JUDGE ALBRIGHT: Boy, I’m really torn on that. I just don’t see how the system works if we don’t move forward with jury trials. I get there is a risk, but there is a risk in going to church, going to the store, etc. Now you might say they are having to wear masks there, but I think the efficacy of masks is debatable. Also, I get that if you want to go to the store or whatever, that’s a voluntary decision; whereas the jurors are being forced to be here. But with that being said, they are being forced to do a civil duty. That’s how our system has always worked. I think at some point, and I think we are getting pretty close to that point, we’ve just got to say we have to have jury trials.

A few weeks ago, my friend Judge Michael Truncale finished a short criminal trial in Beaumont, where a person was acquitted. Let’s say that person had been in jail waiting on trial—if that trial would not have occurred, that person would still be in jail. I certainly understand the concerns, but I think they have to happen.

MS: You recently made some interesting changes to your Order Governing Proceedings. I’m especially interested in the new requirement to notify Chambers concerning the filing of an IPR. Why did you add that requirement?

JUDGE ALBRIGHT: Our rationale is efficiency. We want to be as efficient as possible, so we want to make sure our process is efficient and not duplicative of what is going to happen at the IPR. I also want to ensure the plaintiff has an opportunity to have a jury trial. We want to make absolutely certain we have a competitive schedule with any IPR. I think the idea of the IPR was to reduce costs in lieu of a patent jury trial, so there was a desire to have something to provide certainty and resolve things quickly. However, I don’t see how anyone could complain about me having a jury trial that was quicker than the IPR process.

It’s really to protect everyone’s rights.

MS: You have issued several orders denying a defendant’s motion to say proceedings in lieu of an IPR. What is your philosophy on not staying the case and not deferring to the PTAB?

JUDGE ALBRIGHT: It’s not that I’m not willing to defer to the PTAB at all. For example, a plaintiff had filed a suit against one defendant in a different court and as a result of that, the defendant had instituted an IPR and a year later they filed suit in my court, and it was clear that the IPR would happen in the relatively near future— before I would even have a Markman hearing—I would very strongly consider staying my case because it wouldn’t make sense to have that kind of duplicative work being done.

In the situation where you don’t have a second suit, I think it’s different. For example, in situations where the plaintiff has elected to enforce patent rights provided for by the constitution in a federal court, which is there to protect those constitutional rights, I think that is something that should be respected, especially because I have control over my docket. I know I can get to trial more quickly than the IPR can be resolved which means to me that my process is more efficient than the IPR process.

I’m also protecting a constitutional right, really two rights. Patents are in the constitution and a jury trial is in the constitution. I think those rights are very important.

MS: Your OGP contemplates going to trial in as little as 16 months after the Markman, but generally around 20 months. What procedures and practices do you believe allow you to do that?

JUDGE ALBRIGHT: What I came up with through working with my Patent Working Group is what we determined was a fair amount of time for the Markman and trial to take place. Most cases after Markman can be completed within 1 year based on my experiences as a patent attorney. I think my time to trial is slightly more aggressive than the EDTX, but I think it’s a relatively close call.

But more to your question, I think we put in place several things that allow us to move quickly. First, we conduct telephonic conferences all the time to quickly resolve any issue parties might have, like discovery related issues. I tell people all the time I will schedule a telephone call as quickly as I possibly can. We are also going to limit the number of extensions for filing an answer and we have also put in our OGP limits on the number of claims that can be asserted. We also limit the number of claim terms that can be argued at the Markman hearing, and I provide final constructions at the Markman hearing so the case can continue to move towards trial.

Another factor, when I came here, there was no back log of cases, so I was able to create my rules based on a blank slate, and with the participation of many lawyers experienced in patent litigation. In my two years, I haven’t had any serious complaints from lawyers that they haven’t had adequate time to prepare for trial.

MS: Judge, your patent caseload has continued to grow exponentially. However, you also have a significant criminal docket and non-patent docket. How have you been able to manage these competing dockets and stay on track?

JUDGE ALBRIGHT: I’m just brilliant. No, but honestly, we will have to see what happens once COVID goes away. For example, we are getting fewer criminal cases than if COVID were not here and I haven’t been in trial like I normally would be. So, thus far we’ve been aided because COVID pushed trials back—which has given us a lot of time to play catchup on our docket.

I think I will be able to effectively juggle both patent and criminal trials in a couple of ways. First, through effective use of the Magistrate Judge. He already handles a significant amount of civil matters for me, and he will be doing voir dire for me in all of my patent cases, which frees up an entire half day that I otherwise would not get. He also does all the guilty pleas, initial appearances, and other criminal matters that really saves me a lot of time. Many other judges I was confirmed with still do these—I just don’t have the bandwidth.

We also are planning on scheduling all Markman hearings on Friday, even during weeks in which we have trials, so we can keep pushing cases forward. And I also have Baylor Law School here in Waco, where I am able to leverage having interns working with me, and as well as other interns from other laws schools. They help me in numerous ways and keep the court moving efficiently. Also, my law clerks are exceptional and work very hard to keep everything moving along.

Hopefully, we will be adding another law clerk soon, which is seems to be very certain. And we also will be adding another magistrate judge, although the timing of which is uncertain. But it is very likely to happen.

MS: Do you think your Division has reached a point where it can no longer schedule trials within 12-14 months after Markman?

JUDGE ALBRIGHT: We are going to continue scheduling them within 12-14 months. The nice thing is given the comparative time to trial anywhere else, if my time to trial were to expand slightly, that’s still much faster than Delaware and other popular patent venues. I don’t have to hold things to 12-14 months from Markman in order to still have a relatively prompt trial setting.

Also, the reality is that many cases settle after the Markman hearing. So, despite the fact that we have such a large number of cases, many of them will settle after their respective Markman hearings, which gives us more flexibility in setting cases for trial than we otherwise would. So, no I don’t think we have reached a point of saturation.