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The default rule in patent cases pending before the Waco Division is that fact discovery is stayed until the Markman hearing is over; that hearing in turn typically follows service of a responsive answer or Rule 12 motion by approximately seven months. Specifically, the Court’s operative Order Governing Proceedings (OGP) provides: Except with regard to venue, jurisdictional, and claim construction-related discovery, all other discovery is stayed until after the Markman hearing. Notwithstanding this general stay of discovery, the Court will permit limited discovery by agreement of the parties, or upon request, where exceptional circumstances warrant. What does this look like in practice? First and foremost, the […]

Yesterday evening Judge Albright released a new Standing Order Regarding Venue and Jurisdictional Discovery Limits for Patent Cases. This Order significantly changes Judge Albright’s default limits in his Order Governing Proceedings (OGP). Here are the changes: There are no longer any discovery limits related to venue and jurisdiction in patent cases. Yes, you read that right. Parties are only limited by Fed. R. Civ. P. 26(b)(1).  If a party disputes the relevance or proportionality to the needs of the case, as always, parties are directed to contact the Court for a telephonic hearing.  Jurisdictional discovery is to be completed no later than

Mark spoke with Perry Cooper of Bloomberg Law about today’s updates to Judge Albright’s standing orders relating to transfer/venue discovery: West Texas Judge Shifts Patent Case Rules After Fed. Cir. Order (subscription required) Likewise, last Friday Joe shared his thoughts with Scott Graham of Law.com/Texas Lawyer about why CalTech might have chosen to sue Dell and HP in the Waco Division after previously obtaining a $1.1 billion jury verdict in the CDCA: Caltech and Quinn Head to Texas to Sue Dell and HP (subscription required) Otherwise, here are some links we found interesting this week: How SCOTUS will rule on the constitutionality of the appointment of

While some litigators practicing in the WDTX are probably aware of Judge Albright’s “Patent FAQ,” for those of you who didn’t know or simply could not find the link, here it is: https://www.txwd.uscourts.gov/for-attorneys/judge-albright-courtroom-faq/ Judge Albright recently added four new “FAQs” under the Protective Order and Miscellaneous Sections, relating to: The Court’s guidance regarding a default protective order; The Court’s revised lack of limits on pre-Markman venue discovery (which we addressed on the blog here); Timing to file the Court’s Case Readiness Status Report (the introduction of which we addressed on the blog here); and The Court’s case schedule procedures, and a new calculation tool

Welcome to continuing coverage of the Federal Circuit’s In re: Apple mandamus order. In this post we’ll focus on the near-term consequences of the ruling. First, here’s what’s happened to the litigants: Monday afternoon the Court convened a status conference involving plaintiff Uniloc 2017 and defendant Apple. The hearing was intended to address percolating discovery disputes, along with Apple’s pending motion to stay further discovery. Apple’s position was essentially twofold: (1) the case should be immediately transferred to NDCA in light of the Federal Circuit’s ruling; and (2) failing that, all further discovery should be stayed. In response, Uniloc maintained that (1)

For this week’s link roundup, we’ll first share a couple other perspectives on Judge Albright’s most recent updates to his Order Governing Proceedings (v3.2): From the Winston & Strawn WacoWatch blog: Judge Albright’s Latest Changes to His Order Governing Procedures From Naman Howell’s Waco Patent Litigation Updates blog: OGP Version 3.2 Also, see Naman Howell’s writeup regarding how the Court has apparently made OGP v3.2 retroactive for all cases for which the deadline for initial claim construction briefs was at least one week away: Standing Order – Retroactivity of Revised OGP. For an example case in which a retroactive OGP v3.2 was entered, see

On November 9, 2020, the Federal Circuit issued an order granting Apple’s mandamus petition to transfer its case against Uniloc to the Northern District of California (“NDCA”). We previously discussed the panel majority opinion, so this post will focus on Judge Judge Kimberly A. Moore’s dissenting opinion – which contained some flavorful rhetoric.  Judge Moore opens her opinion with several comments leading up to her conclusion that the majority exercised “de novo dominion” over Judge Albright’s individual fact findings. She repeatedly emphasized the clear abuse of discretion standard of review, maintaining that the majority “usurp[ed] the district court’s role in the transfer

Yesterday the Federal Circuit issued an order granting a mandamus petition filed by Apple regarding a patent case proceeding in the Waco Division. The order effectively reverses Judge Albright’s prior denial of Apple’s motion for a convenience transfer to the N.D. Cal. under 28 U.S.C. § 1404(a), based on the Federal Circuit’s “conclu[sion] that Apple has demonstrated that the district court clearly abused its discretion in denying transfer.” (We’ve previously examined convenience transfers before Judge Albright on the blog.) By way of brief procedural background, the timeline leading up to the In re: Apple opinion is as follows: 9/10/19 Plaintiff Uniloc 2017 LLC files its

As part of Judge Albright’s continuous attempts to make litigating in the Waco Division optimally efficient, Judge Albright recently released his newest Order Governing Proceedings (OGP) Version 3.2. The newest version has some significant changes front the prior order, namely the briefing schedule for Markman and including default venue/jurisdiction discovery limits.  Here are the new additions to OGP Version 3.2: (1) In-person attendance for Rule 16 Case Management Conferences are now off the table. CMCs are now conducted strictly via telephonic conference. In addition, rather than specifying the CMC agenda in the OGP, the Court directs parties to “be prepared to discuss any

There’s not one all-encompassing event dominating WDTX coverage this week—though watch next week for another set of anticipated updates to Judge Albright’s Order Governing Proceedings. Until then, here are some general IP-related links to tide you over: When the PTAB exercises its discretion not to institute an IPR is a topic of perpetual interest to patent litigators. Bob Steinberg, Inge A. Osman, Jonathan M. Strang and Lesley M. Hamming of Latham & Watkins analyze the USPTO’s current request for comments on a proposed codification/rulemaking regarding the NHK-Fintiv factors: USPTO Seeks Comments on PTAB’s Discretionary Denials of Review  As an example of what such comments might