To make up for our recent brief layoff, we’ll try to bring you a slightly meatier-than-normal summary of recent happenings in and coverage of the Waco Division. Here’s what we’ve picked up over the last few weeks that’s not related to VLSI-Intel II:
ESW-Roku: As we covered a couple weeks back, Judge Albright’s third patent trial resulted in a defense verdict of both non-infringement and invalidity:
- Scott Graham of Law.com interviews the victorious defense team: Jackson Walker Saves Roku From $10M—No, Make That $228M—Patent Hit (subscription required)
- Michelle Casady of Law360 also covers the verdict: Roku Cleared Of Infringement In $228M Interactive TV IP Trial (subscription required)
VLSI-Intel I: Even though the second trial is now behind us, the first chapter of the VLSI-Intel saga remains a topic of great interest (and we haven’t even seen the results of post-trial motions—or the inevitable appeals—yet!). I guess that’s how much attention $2 billion buys you…:
- Writing over at Law360, Richard Kamprath and Abigail Clark of McKool Smith take another deep dive into VLSI’s damages model, and conclude that it may be the vanguard of a new-wave damages methodology: Hedonic Regression Shows Promise For Modeling IP Damages
- In contrast, Christopher Scharff & Henry Kaskov at IPWatchdog bring a decidedly less sanguine view of VLSI’s methodology and the jury’s verdict: How Will the $2.18 Billion Verdict in VLSI Technologies v. Intel Impact Future Patent Valuations?
Fed. Cir. TracFone mandamus order: On April 20, the Federal issued its order in In re Tracfone. This was actually the second in a series of mandamus orders resolving petitions filed by TracFone (we covered the first here), and TracFone prevailed again: The Federal Circuit, in an opinion authored by Chief Judge Prost, ruled that Judge Albright’s ruling denying TracFone’s motion to transfer its case to SDFL “was clearly flawed” because that ruling misapplied the Fifth Circuit’s Volkswagen “willing witness” factor by ignoring “several of TracFone’s likely employee witnesses residing in the transferee venue and [by ruling] without relying on the location of a single potential witness within or even close to Waco.” The District Court had previously denied transfer because it concluded that the balance of the Volkswagen factors only “slightly” favored transfer, thus failing to carry the party seeking transfer’s burden to prove its preferred venue is “clearly more convenient.” But the Federal Circuit concluded that, after flipping the willing-witness factor, the balance of the factors mandated transfer. Judge Albright signed an order transferring the case to SDFL the following day. .
- Prof. Dennis Crouch at Patently-O unpacks the decision here: Federal Circuit Moves Another Case Out of W.D.Tex.
- Perry Cooper of Bloomberg Law also covers it: TracFone Gets Federal Circuit to Send Patent Suit Out of Texas (subscription required)
- As does Tiffany Hu of Law360: Fed. Circ. Slams Albright’s ‘Clearly Flawed’ Transfer Denial (subscription required)
Meanwhile, ongoing transfer motion practice continues to occupy much of chambers’ bandwidth. As we previously covered, last month the Court issued a new standing order signaling the Court’s commitment to resolving outstanding motions to transfer before a case’s Markman hearing. The Court has recently commented that a similar rationale is intended to apply to other motions that could similarly potentially divest the Court of jurisdiction—e.g., standing-based 12(b)(6) dismissal motions. But to that end, the Court has been issuing a mini-blitz of orders on transfer motions starting early this month. (We count at least a dozen since March 29, and there may be more.) Here are some recent perspectives on the always-germane topic of Section 1404 practice before Judge Albright:
- Winston & Strawn’s WacoWatch blog has a comprehensive look at recent transfer practice before Judge Albright: First Quarter 2021: Judge Albright’s Transfer Orders and Procedures in Review
- Perry Cooper of Bloomberg Law covers a series of rulings in cases filed by EcoFactor: Google, Others Must Face Smart Thermostat Patent Suits in Texas (subscription required)
- Matthew Bultman of Bloomberg Law analyzes a ruling from WSOU v. Microsoft: Microsoft Denied in Bid to Move Patent Suits From Waco to Austin (subscription required)
- Andrew Karpan of Law360 looks at Koss v. Apple: Albright To Apple: Koss Patent Row Won’t Be Transferred (subscription required)
Meanwhile, there’s also been a bit of coverage stemming from appellate proceedings based on Judge Albright’s rulings:
- Dani Kass of Law360 covers the Federal Circuit’s denial of Apple’s mandamus petition to stay claim construction pending Markman (a prequel to the transfer denial ruling mentioned a few bullets up); the Court’s rationale was that the Court’s new standing order (mentioned above) ensured that “Apple’s focal concern that the district court would proceed to the Markman hearing before resolving the transfer motion is no longer an issue”: Fed. Circ. Rejects Apple’s Bid To Nudge Albright On Transfer (subscription required)
- The US Supreme Court on April 5 denied a petition for certiorari filed by SynKloud Technologies following last July’s Federal Circuit order granting Adobe’s mandamus petition seeking transfer to NDCA. (We looked at that Fed. Cir. ruling here.)
- Perry Cooper of Bloomberg Law covers the story: No High Court Eye on Order Sending Adobe Patent Case Out of Waco (subscription required)
- So does Britain Eakin of Law360: Justices Won’t Hear WDTX Transfer Fight In Adobe IP Row (subscription required)
- Tiffany Hu of Law360 addresses ongoing mandamus briefing concerning the Court’s denial of a motion to stay pending post-grant review in Kerr Machine Co. v. Vulcan Industrial: Fed. Circ. Told Albright Has ‘Impossible Barrier’ To Stay Cases (subscription required)
As we’ve mentioned on a couple recent occasions, the Court issued case-ending sanctions at the end of March in Performance Chemical v. True Chemical, based on discovery violations. We’re going to bring you a more comprehensive treatment on the blog when time allows, but in the interim you can see how the bar has taken note of this rarely seen occurrence:
- Eric Joseph Klein and Corbin Cessna at Vinson & Elkins share their perspective: Western District of Texas Sanctions Patent Infringement Defendant for Discovery Abuse and Misconduct
- Matthew Bultman of Bloomberg Law covered the ruling earlier that month: ‘Death Penalty Sanctions’ Levied in Fracking Services Patent Suit (subscription required)
- As did Dani Kass of Law360: Albright Issues Case-Ending Sanctions In Oil Patent Fight (subscription required)
Finally, even as Judge Albright passes 2½ years helming the Waco Division, general coverage of how he runs his Court continues to proliferate:
- Erick S. Robinson of Porter Hedges shares some preliminary findings “from an ongoing quantitative analysis study of the Western District of Texas, Waco Division”: What is in the Water in Waco? A Lot of Patents!
- Ryan Davis of Law360 compares Judge Albright’s pandemic-related trial practices with those prevailing in EDTX: How Texas Judges Have Kept IP Trials Moving During COVID (no subscription required, given COVID-related content)
- Alexandra K. Kim and Kevin Y. Li of Wolf Greenfield similarly look at Judge Albright’s pandemic trial procedures in the context of other judicial districts: A Precautionary Tale: District Courts Take Varying Measures As In-Person Trials Appear on the Horizon
- And Paul D. Ackerman, Gregory L. Porter, and Tonya M. Gray of Hunton Andrews Kurth examine several recent developments in the transfer-motion space, plus draw some preliminary conclusions from the first few trials before Judge Albright: What’s Happening in the Western District of Texas? Patent Litigation Update
Happy reading, and happy weekend! We’ll see you next week…