Over the last couple of years, two courts have emerged as the world's patent litigation hotspots--the places to be if you're a plaintiff, and the places to watch regardless of whether you assert or defend against patent: the Waco division of the Western District of Texas, where Judge Alan Albright now gets about 20% of all U.S. patent infringement complaints, and the Munich I Regional Court, which will add a third patent litigation division next month. I don't mean to downplay the significance of other venues. In particular, the Eastern District of Texas continues to be pretty significant; proceedings before the U.S. International Trade Commission often drive settlements; and in Germany, the Mannheim Regional Court (once dubbed "the Eastern District of Mannheim") has a lot in common with the Munich court.
Through the Expose Patent Trolls newsletter, my attention has been drawn to an oil industry case--pretty remote from what I'm normally interested in. Expose Patent Trolls pointed to a recent JD Supra article entitled West Texas plaintiff-friendly patent decisions keep coming, discussing a "death-penalty sanction" ruling in Performance Chemical v. True Chemical (or just Performance Chemical v. TrueChem) that "may further help fuel the rush of patent plaintiffs to the Western District of Texas, a district quickly gaining in popularity for its plaintiff-friendly discovery rules." Of course, "death penalty" is figurative in this context, just in case anyone was wondering. What happened is that Judge Alan Albright of the United States District Court for the Western District of Texas vacated a trial date after identifying extensive discovery misconduct on the defendant's part, and entered a preliminary injunction and a ruling on the merits, leaving only damages to be determined by a jury (or by another court order, which is what the plaintiff would prefer).
I've repeatedly written about the situation in the Western District of Texas, and I recently made the right call with respect to a likely trial outcome (Intel being cleared of infringement in the second VLSI case). No avid reader of this blog would consider me to be hostile to defendants. But I'm also a conservative in many respects. I believe in law and order, and in the deterrent effect of penalties. In the U.S., deterrence still matters, though there is a certain trend toward the more European laissez-faire and in a couple of decades the U.S. perspective on penalties will probably be similar to that European softness.
If only a third of what has allegedly happened in this Texas patent case is true (such as that stuff was removed right before site visits), Judge Albright has a point here, and he would actually be a bad judge if he condoned it. Winston & Strawn's WacoWatch blog discussed the cancellation of the trial on March 31, and less than two weeks later reported on the "death penalty sanctions." It really does seem that this is an extraordinary case.
Meanwhile, the plaintiff--knowing that W.D. Tex. is the nation's busiest patent court--would like to take another shortcut and just have a $5M+ damages award (which would be tripled) entered, either as a default judgment (which was the procedural basis of the previous decisions in the case) or as a summary judgment. TrueChem is now represented by new counsel (which may be an attempt to put the blame for previous wrongdoings at least in part on former counsel), and opposes that damages motion (this post continues below thed document):
21-06-25 Cv222 TrueChem Opp... by Florian Mueller
Damages determinations are really at the heart of the constitutional right to a jury trial in civil proceedings, and Judge Albright himself felt before that the only question left for the jury to decide is damages. He also noted a few months ago that there is a public interest in determining the validity of a patent, given that it could also be asserted against other parties. That position shows he's not simply going to do whatever suits a plaintiff. He may be plaintiff-friendly in many ways, possibly more so than any other U.S. patent judge, but I've seen judges, particularly in one outrageous German case almost ten years ago, who--unlike Judge Albright--even feel that patent invalidation runs counter to the public interest. Former Federal Circuit Chief Judge Randall Rader referred to the PTAB as "patent death squads." Even Judge Lucy Koh of the United States District Court for the Northern District of California, with whom I otherwise agreed on a lot of questions over the year, gave an interview a long time ago and said (which she might not say anymore with all of the experience she has gained since) that defendants had too many opportunities to shoot down patents.
Even though Judge Albright had qualms about throwing out TrueChem's invalidity defense, he ultimately did so. But TrueChem brought a motion for reconsideration of that particular aspect of the default judgment a few days ago (this post continues below the document):
21-06-28 Cv222 TrueChem Mot... by Florian Mueller
On this one, I definitely agree with TrueChem. I don't know whether it is very likely that Judge Albright will change mind on an issue he weighed and decided a few months ago, but the discovery misconduct at issue is all about infringement, and invalidity should still be decided. It's actually quite hard to persuade juries of an invalidity defense, but at least TrueChem could then take it up directly with the Federal Circuit instead of firstly having to ask the appeals court to set aside the default judgment that precluded the invalidity defense altogether.
Whatever the outcome of that fracking case may be, I don't think that one calls Judge Albright's judicial style into question.
He does have a "what's mine is mine" attitude toward patent cases and declines venue transfer motions all the time. Yesterday, Expose Patent Trolls tweeted about a case in which Samsung and LG succeeded in the Federal Circuit:
Judge Albright protested moving another case out of the Western District, but @SamsungUS & @LGUS succeed in the Federal Circuit vs. NPE & @ConcertTech subsidiary Ikorongo Texas LLC. https://t.co/DVqX8uL7a3 @PerryECooper #ExposePatentTrolls #JobsNotLawsuits #Waco
— Expose Patent Trolls (@ExposPatenTrols) June 30, 2021
The VLSI v. Intel cases are the most important set of W.D. Tex. patent disputes at the moment, and that's because of that $2.175B record verdict. We'll see how Judge Albright adjudicates Intel's post-trial motions. As I wrote a couple of weeks ago, a retrial in that first case may be a possibility, and otherwise it's rather unlikely that the judgment would be affirmed by the Federal Circuit. In the second case, in which VLSI couldn't persuade the jury that Intel was infringing two patents, VLSI is seeking a judgment as matter of law in its favor, or alternatively a retrial. Last week Intel filed its opposition to the retrial motion as well as to the JMOL motion. VLSI will get to reply to those filings, but so far I don't have reasons to assume that VLSI can turn Intel's successful defense in that case around.
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