Guest Post: Community Ties in Patent Litigation

Guest post by Professors J. Jonas Anderson and Paul Gugliuzza.  Their article Federal Judge Seeks Patent Cases was recently published in the Duke Law Review, and I’m currently working on a project with them on writs of mandamus at the Federal Circuit. – Jason

Following tradition, on the last day of 2021, Chief Justice Roberts provided his annual year-end report on the federal judiciary. In the report, he addressed three issues that have “been flagged by Congress and the press” over the last year. Among them was “the arcane but important matter” of judicial assignment and venue for patent cases.

Let the arcana commence! Let’s talk about judicial assignment of patent cases.

For those unfamiliar with how cases are assigned in district courts, let’s use the Western District of Texas as an example. The Western District of Texas is a vast district, stretching more than 600 miles across from El Paso (on the western limits of the state) to Waco (which is much nearer to Louisiana than New Mexico). When a plaintiff files a suit in the Western District, the suit is assigned to the judges within one of seven divisions that make up the district: Austin, Del Rio (Alpine), El Paso, Midland/Odessa, Pecos, San Antonio, and Waco. But the case is not assigned randomly to one of the divisions; rather, the plaintiff selects (from a drop-down menu) to which of the divisions the case will be assigned. Only after a division is selected by the plaintiff does random assignment occur, with each judge within the division receiving a certain percentage of the cases filed, per a standing order filed (and updated in 2021) by the Chief Judge of the Western District of Texas.

But for certain divisions within the district, individual judges receive 100% of the cases filed, meaning plaintiffs can pick their judge. In the Western District of Texas, this 100% assignment occurs in the Midland-Odessa division (assigned to Judge David Counts), the Pecos Division (also Judge Counts), the Del Rio Division (Judge Alia Moses), and—most importantly for patent law—the Waco Division (Judge Alan Albright). That means that Western District of Texas plaintiffs can “judge shop” for the judge they prefer, at least in those four divisions. Judge shopping is, shockingly, possible in a large portion of district courts across the land, not just in Texas.

Thus, it is great to hear that Chief Justice Roberts is investigating the problem of judge shopping. The practice of “judge shopping” has long been frowned upon by courts; unlike forum shopping, in which the plaintiff chooses the court that appears to be favorable, judge shopping refers to the practice of the plaintiff choosing the specific judge who tries the case. The due process and fairness concerns inherent with a plaintiff choosing who judges their case has recently been of interest to members of the Senate Judiciary Committee as well.

Yet despite the Chief Justice’s approval of random case assignment, he noted in his year-end report that there is an “important and sometimes competing” value at issue with mandating random assignment of patent cases: Congress has shaped the federal courts into districts and divisions “so that litigants are served by federal judges tied to their communities.” Thus, according to Chief Justice Roberts, randomization that severs litigants from federal judges in their communities presents a conflict of values that the judiciary must resolve.

This is largely irrelevant for patent cases.  There is generally little to no local community that would be inconvenienced by random assignment of cases. For proof, just take a look at Judge Albright’s docket. The overwhelming majority of patent plaintiffs in Waco are not from Waco, the Western District, or even Texas; they are filing in Waco because they know that they will get Judge Albright, not because Waco is their “community.” In fact, in reviewing the over 800 Waco patent plaintiffs in 2020, we could only find two plaintiffs with corporate headquarters in Waco (more on that later). To be sure, there are quite a few Waco plaintiffs with headquarters in Austin (within the Western District of Texas) or Dallas (in the Northern District of Texas). But, if one is truly concerned about judges being tied to local communities, the Austin division of the Western District of Texas or the Dallas division of the Northern District of Texas would be better venues in which to litigate for those companies.  If anything, current practice draws litigants away from local communities and into far-flung districts based on the perceived strategic and procedural peculiarities of particular judges.

The two exceptions to the no-Waco-connection rule actually prove that patent plaintiffs do not have special local ties to Waco. The two exceptions are WSOU Investments and Voip-pal.com. These companies filed 181 patent suits in Waco in 2020, 169 of which were filed by WSOU. WSOU opened an office in Waco, but apparently uses the office just to avoid having its cases transferred away from Waco.  WSOU is a litigation-funded assertion vehicle run by Craig Etchegoyen, who himself has run or controlled non-practicing entities like Uniloc and has filed hundreds of lawsuits in Texas, but who himself lives in California.  As the Federal Circuit explained in In re: Juniper Networks:

[WSOU]’s presence in Waco appears to be both recent and relatively insubstantial. The office was established only a few months before the [2020] complaints against Juniper were filed, and the activities of the office are largely tied to bringing lawsuits in that court. [WSOU] has only two employees who work from Waco, one of whom is its in-house attorney responsible for litigation. The principal officers of [WSOU] are located in California.

This is an example of a local office established simply for the purpose of judge-shopping. Certainly, these cannot be the sorts of community interests that Chief Justice Roberts is worried about undermining with randomization of case assignment.

In fact, the proliferation of intra-division transfers of patent cases from Waco to Austin demonstrates that Waco is not generally the location in which plaintiffs want to litigate; it is the place in which the judge they prefer is located. For roughly his first two years on the bench, Judge Albright had a practice of granting transfer from Waco and Austin, yet remaining the judge on the case. This practice appears to have resulted in other judges stepping in to end the practice, but the fact that plaintiffs were selecting Waco (and thus Judge Albright) and then turning around and requesting that the case be transferred to Austin—a division they could have selected in the first place—demonstrates that there is often not much convenience, or local interest, gained by having the case tried in Waco. The only thing many of these plaintiffs want with Waco is Judge Albright; as long as he is on the case, the plaintiffs would prefer to be in Austin.

We have recently written an article in which we proposed a two-prong solution to the judge shopping problem. We propose fixing the judicial assignment process by ensuring that patent cases are assigned randomly among multiple judges and by altering the patent venue statute to require that a plaintiff demonstrate that venue exists within the division (not merely the district) in which the case is assigned. These two changes are simple to implement and would make it harder for plaintiffs to shop for individual judges—a practice that is flatly inconsistent with notions of judicial fairness and impartiality.

69 thoughts on “Guest Post: Community Ties in Patent Litigation

  1. 12

    Another objected-to [even by some members of the Senate] issue with WDTX Waco and its sole judge, J. Albright, has been effective denial of IPRs for a number of defendants by PTAB application of its self-generated “Fintiv” rule based on unrealistic projected trial dates from that Court. IPWatchdog today reports that this criticized PTAB practice has not been repeated in the last 4 months, so might be ending.
    However, as far as I am aware, J. Albright still does not grant any stays of any aspect of any of patent suits for IPRs? Has he ever granted summary judgement instead for clearly effective prior art?

    1. 12.1

      based on unrealistic projected trial dates from that Court.

      Repeating this fallacy does not make it true.

      AGAIN – if CA5 has a processing issues, let’s see something from CA5.

      1. 12.1.1

        anon: clearly you’ve not litigated or been a party to a case before Judge Albright. His “default” scheduling order is indeed unrealistic. Now that he is under the crush of hundreds of cases, he routinely pushes deadlines back. That is one reason the PTAB now completely ignores his fake deadlines.

        1. 12.1.1.1

          Well, L, you are correct in that I have never been before THAT judge, but ALL judges routinely schedule aggressively, AND given the number of cases that simply drop off the docket, there is nothing to indicate that aggressive scheduling is in any way improper.

          NOW, if there is a coupling of excessive re-schedules, then I would indeed take that as a point that the first scheduling should be considered in a different light.

          And of course, I would expect CA5 to first and foremost handle this at their level prior to any other level of the court system becoming involved (unless you think that ALL instances of court rescheduling — and goodness know what THAT looks like — across all districts ).

          1. 12.1.1.1.1

            Judge Albright’s aggressive schedule is not “improper.” I did not make that point. Rather, the point is that the schedules are fake news. One human judge cannot possibly hold trials in all 1,000 of his cases on the schedule that he puts out by default. And everyone knows that (including the PTAB which has totally stopped denying institution based on default district court schedules). The Fifth Circuit has no say in this because they lack jurisdiction over any appeal involving a patent case. So the fact that they are silent is irrelevant.

            1. 12.1.1.1.1.1

              The Fifth Circuit has no say in this because they lack jurisdiction over any appeal involving a patent case. So the fact that they are silent is irrelevant.

              Imagine having to explain basics like this in a forum for lawyers…

              1. 12.1.1.1.1.1.1

                See? This is what happens when Greg “I Use My Real Name” is compelled to pipe up when — by his own assertions — he is seeing only HALF the conversation.

                L – you inserted a strawman that misses the point (and this is the second time that you have done so.

                Your “The Fifth Circuit has no say in this because they lack jurisdiction over any appeal involving a patent case” simply misses the point that CA5 DOES control the procedures of CA5. No one — ever — indicated that “hearing the appeal of a patent case” is the DRIVER for how CA5 sets – and polices – its own procedures.

                Imagine having to explain basics like this in a forum for lawyers indeed — just NOT how Greg wants to chip in about.

        2. 12.1.1.2

          It took a surprisingly long time, two previously noted-here legal challenges presenting the facts, and some bad press, for the PTAB to apparently finally recently stop accepting for Fintiv findings J. Albright’s unrealistically early “default” scheduling orders for his hundreds of pending patent cases, preventing IPRs.
          If his patent suit trials were actually conduced that soon after their filing dates some should of them have made it to Fed. Cir. decisions by now?

  2. 11

    SCOTUS has only to look to their own extrajudicial, unconstitutional Congress-usurping, innovation-killing record with patent cases to know that having judge generalists is a terrible mistake.

    And really, who can blame such hard-working generalists from not wanting to deal with all the hassles of patent cases?

    They. Shouldn’t. Have. To.

    No one — including judges — should be expected to know everything about everything.

    The Patent Pilot Program was one of the best IP ideas Congress has ever had.

    They should bring it back.

    Now. Today.

      1. 11.1.1

        I also thought the Patent Pilot Program was a good idea, as long as it was optional and included more than one judge per district.
        But how is objecting to having any judge handle [not usually decide] patent cases consistent with also arguing for [vastly less qualified] lay juries deciding patent cases?

        1. 11.1.1.1

          Paul,”But how is objecting to having any judge handle [not usually decide] patent cases consistent with also arguing for [vastly less qualified] lay juries deciding patent cases?

          That’s an apples and oranges question.

      1. 9.1.1

        Hi Malcolm – I am more than certain that you do not know what my favorite news sources are (Hint: the likes of Fox are just as bad as the likes of CNBC and also fall into the category of MSM).

        Sorry if that ruins your narrative, but you just don’t get to use that “One Bucket” of yours.

          1. 9.1.1.1.1

            You can do the conversion into Euros if you like — there is no “feign (?)” of anything on MY part (you are edging up to that projection meme/tell of yours).

            As to specificity, I have already given that to you. Again — and this is the answer that you will get from me — I made this clear to you more than a year ago. It’s in the archives in black and white. I am not going to do your legwork for you.

              1. 9.1.1.1.1.1.1

                You finally admitted you are paid to post.

                Not at all – try (again) to focus: I enterprise on YOUR choices when YOU post.

                That’s altogether different than my being paid for me to post.

                My enterprise is entirely leveraged off of YOUR 0bsess10n with me. I can post to my heart’s content — absolutely aside from my enterprise.

                1. Uhh huh. Intressting explanation, that. If that’s true [LOL] you do not get paid unless you post some random nonsense that we respond to.

                  You are not paid to post, Snowflake? How so?

                2. Are you checking with your employer about how to answer? Or your union? You do have a union, Right?

                  Either way, nobody is fooled. It was a simple question that you will never answer.

                  Any more admissions before we close comments, Snowflake?

                3. You are not paid to post, Snowflake? How so?

                  Asked and answered – many times now.

                  Your tells of “nobody is f00led,” “you will never answer” (clearly and objectively false) and “admissions” belie the fact that you just don’t like the answer that you have been given.

                  S
                  U
                  C
                  K
                  S

                  to be you.

                  And I did chuckle at your “before we close comments,

                  As this further belies two more of your tells:

                  The use of referring to yourself in the plural, and

                  That you think that you have EVER had the last word (even as I have told you more than once it is not just ‘last word,’ but BEST and last word.

                  And on THAT – you will never succeed.

                4. We’ve decided you can have one (1) more mindless ad hominem insult before we close comments. We would like to say you should think about it some before posting. But that’s not gonna happen. — so just look down through the script and try to make it a good one. Your best?

                5. I love your multiple delusional state in which you refer to yourself in the plural and seem to think that you have any power over shutting threads down.

                  By the way, you are not using “ad hominem” correctly.

                  ad ho·mi·nem
                  /ˌad ˈhämənəm/
                  adjective
                  (of an argument or reaction) directed against a person rather than the position they are maintaining.

                  As you HAVE NO position that you are maintaining, any arguments directed against you as a person ARE on point, and thus cannot be ad hominem arguments.

                  That’s a drawback (for you) when you post inanities in your 0bsess10n over me — you haven’t even bothered to put up a position on ANY of the topics of the threads that you have targeted me on. And yes, that too is a sign of your cyber-sta1 king of me.

                6. How disappointing.

                  OK. We will close comments after one more of your tries at one of the mindless ad hominem insults in your script. Make it good. [hint] Try to stay away from the admissions this time.

  3. 8

    E.D.Va. randomly assigns patent infringement cases to the 4 different divisions. Filing in Alexandria and getting assigned hours away in Norfolk is a challenge not to be overlooked.

    1. 8.1

      W – I have filed 2 cases in EDVA in the Alexandria courthouse; both cases got assigned to Norfolk.

  4. 7

    Man that’s super weird way to do the judicial assignment that they’re doing in WD tex.

    In any event, it might be white supremacist. I read an article about how raci sm is “baked into patent systems” the other day. Apparently the whole thing is just a white supremacist sc am. This being because it fails to recognize the contributions of indigenous and other POC individuals, and also groups, to innovation etc. (and presumably does not shower them in gold as well). So says nature .com book review.

    link to nature.com

  5. 6

    We propose fixing the judicial assignment process by ensuring that patent cases are assigned randomly among multiple judges and by altering the patent venue statute to require that a plaintiff demonstrate that venue exists within the division (not merely the district) in which the case is assigned.

    How necessary is the amendment to the venue statute? It seems to me that the problem here is that you can end up with plaintiffs choosing their judge. If you do the “random assignment of judges” bit, then you solve that problem, even without the amendments to the venue statute. I suppose that the statutory amendments as proposed are not bad, but it is hard to get statutory changes. Why not make it easy on yourself by just going with the changes that the Supreme Court can instigate all on its own?

  6. 5

    “We propose fixing the judicial assignment process by ensuring that patent cases are assigned randomly among multiple judges”

    Is there a reason to limit this to patent cases?

    1. 5.1

      Definitely not. All cases should be filed by a plaintiff who does not know who will preside over the case.

      1. 5.1.1

        Cases assigned randomly between plural judges is the normal practice in most Federal Districts.

        1. 5.1.1.1

          Is this – or is this not – a call to be made BY the CA…?

          CA5 appears to be comfortable with its choice, eh (or does that not matter to anyone who happens to want something different)?

        2. 5.1.1.2

          I am not sure that this actually qualifies as the “normal” practice (at least in the sense of “numerical majority”), Paul. As the linked article by Alex Botoman notes, “[55] of the nation’s [94] federal district courts are subdivided into geographic ‘divisions’… In these districts, litigants can select the pool of judges eligible to be assigned to their cases by strategically choosing the division in which they file… .”

          1. 5.1.1.2.1

            Sure, but the whole point here is that getting one of a “pool” of judges is not the same as always getting the same single judge.

            1. 5.1.1.2.1.1

              Except where the “pool” is a single judge. As the article notes, this is definitely the case in four of the WD Tex’s nine divisions. How many other district divisions have just one judge?

              1. 5.1.1.2.1.1.1

                That raises the even more interesting question: Why does WDTX have nine Divisions? I would bet there are many Districts with far greater populations with far less Divisions than that.

                1. The point of the “divisions” is that they each contain a courthouse (I believe that one of the WD Tex divisions contains two courthouses, but that is beside the point). Given WD Tex’s enormous geographical scope, it makes sense that it be divided up into many courthouse-catchments. What you are really optimizing here is how far a litigant needs to drive to get to the courthouse, rather than how many warm bodies reside in each courthouse-catchment.

  7. 4

    BROS WE IN THE DIP, if you got money sitting around, buy buy buy at least shortly even if you don’t want to right now at this moment.

      1. 4.1.1

        Sorry bro, don’t keep up with the DOW but I would guess it’s about the same as the SP500 or similar in terms of overall trend.

  8. 3

    We propose fixing the judicial assignment process by ensuring that patent cases are assigned randomly among multiple judges and by altering the patent venue statute to require that a plaintiff demonstrate that venue exists within the division (not merely the district) in which the case is assigned.
    How about fixing the judicial competence process first? You fix that problem the judicial assignment process will fix itself.

    It is exceedingly well-known that many judges don’t like patent cases. The law is arcane, the facts can be obtuse — in short, they are difficult for a generalist on the bench to understand/manage. When a case is presented before such a judge, who do you think is going to receive the brunt of the judge’s ire? It is going to be the plaintiff.

    Patent owners go to places like the EDTex and WDTex because they can be reasonable assured that they’ll have a judge that understands the issue and isn’t looking for a way to immediately dispose of the case (hello — 12b6). Alternatively, another way to discourage patent plaintiffs is to ensure that their cases drag on for an eternity. Few are going to select a particular venue to file suit in when it is know that it’ll take many years for a trial to get scheduled.

    Justice Roberts, in his report, wrote that “the Judicial Conference has long supported the random assignment of cases and fostered the role of district judges as generalists capable of handling the full range of legal issues.” However, this is a quaint notion that may have had relevance when the ‘family doctor’ made house calls and was the only doctor anyone ever saw. Today, in medicine, you have general practitioners, dermatologists, cardiologists, urologists, oncologists (of many different flavors), podiatrists — just to name a few. When receiving a cancer diagnosis, I doubt most people are going to want to be treated by their general practioner.

    As another example, when I was at a “biglaw” firm which had many, many associates, we all had our expertise. There was a handful of times in which I had a biotech application assigned to me that I passed on to someone else who had that experience. On the flipside — I’ve seen the simple electronic’s application written by a biotech guy — it wasn’t pretty. Things like the law, medicine, and technology have gotten so complicated that a single person cannot be reasonably competent in all aspects. For this reason, we’ve seen more subject matter experts and less generalists.

    In June of 2011, Congress enacted a Patent Pilot Program that enabled judges who expressed an interest in patent cases an opportunity to handle them and other judges, not so inclined, an opportunity to have the case transferred to a pilot program judge.

    This is from a Law360 writeup of the patent program, which expired last year:
    Of the 28 judges in the Central District of California, six volunteered to be part of the pilot program, and Judge Selna said they heard about 70% of the district’s patent cases in the past decade. He noted that six judges would have heard only about 20% of patent cases if they were randomly assigned, as they were before the program.
    “In a way, it’s the best of both worlds,” Judge Selna said. “Judges who like patent cases and get them at random can keep them, judges who prefer not to do it can pass them along, and those who are interested in patent litigation, namely the judges in the patent pilot program, have an increased number of cases to work on.”

    The proposal presented above is: “We propose fixing the judicial assignment process by ensuring that patent cases are assigned randomly among multiple judges.” However, consider this quote from the article I referenced:
    “I was a fan of the program. I like the idea of having patent cases decided by judges who are enthusiastic about patent law,” he said. Now that it’s ending, “I do have some concern about patent cases being put on the docket of people who don’t feel comfortable and don’t feel energized to dive into them.”

    Instead of advocating for a Band-Aid to fix the issue with the WDTex, perhaps we should be advocating for a more formalized version of the temporary system created by the Patent Pilot Program.

    Additionally, Congress should be looking into WHY the WDTex is attracting more plaintiffs. I suspect that there are a lot of different reasons that inform a plaintiff’s choice. So long as the basis for those reasons are proper, Congress should ensure that a formalized system of patent judges incorporates this basis. Ultimately, the goal should be to have a judicial system in which patent plaintiffs don’t feel the need to venue shop.

    1. 3.1

      How about fixing the judicial competence process first? You fix that problem the judicial assignment process will fix itself.

      I think that Congress should set up a separate, centralized district court for all patent cases, just like there is a separate, centralized appeals court for such cases. Judges for this court would be required to have a PTO reg. number, so that one can be sure that they have a science background and a familiarity with patentability law.

      That said, there is no reason why solving the choose-your-judge problem should wait on the solution to the district-judges-who-can-handle-patent-cases problem. The authors to the post above have a simple and easy-to-implement fix that will solve the problem about which the Chief expresses concern without exacerbating the patent-competency problem. Do not let the perfect be the enemy of the better.

      1. 3.1.1

        That said, there is no reason why solving the choose-your-judge problem should wait on the solution to the district-judges-who-can-handle-patent-cases problem.
        Because you are addressing a symptom of the problem — not the problem itself. There is only so much effort going to get devoted to patent issues in Congress. I would have that effort be devoted to things that address the root of the problem.

        I get that there is a certain subset of posters that get all riled up because Albright is getting so much work. However, what I would like to hear from them is what is Albright doing so wrong that he deserves their ire? The guy is an experienced patent litigator (who represented both sides of the v.) who is now managing the trails himself. Granted, if you like long, dragged-out trial dates, then perhaps Albright isn’t your man.

        1. 3.1.1.1

          There is only so much effort going to get devoted to patent issues in Congress. I would have that effort be devoted to things that address the root of the problem.

          At least one of the solutions proposed above (random assignment of district judges) does not require action by Congress. This is a change that can be effect by the judiciary on its own.

          I would like to hear… what is Albright doing so wrong that he deserves their ire…

          I think that it is a mistake to frame this as a Judge Albright problem. The problem with with plaintiffs choosing Judge Albright, not with Albright himself. It is—on its face—inappropriate for the plaintiff to choose the judge.

          If plaintiffs (even those with no obvious connection to WD Tex) want to choose WD Tex even in the face of a change to random assignment of judges within a district, fair enough. They should not, however, be permitted to choose Judge Albright specifically.

          1. 3.1.1.1.1

            The problem with with plaintiffs choosing Judge Albright, not with Albright himself. It is—on its face—inappropriate for the plaintiff to choose the judge.
            Defendants choose to transfer to the NDCal all the time because they know that vast majority of time they’ll get a judge that will invalidate the patent(s) at a drop of the hat. I’m not seeing seeing much of a difference.

            The same thing would happen in a district under the Patent Pilot Program if one judge signed up and the other judges didn’t — they could all transfer their cases to this single judge.

            This is a change that can be effect by the judiciary on its own.
            Each district has their own rules. Perhaps the WDTex likes it this way.

            1. 3.1.1.1.1.1

              Defendants choose to transfer to the NDCal all the time because they know that vast majority of time they’ll get a judge…

              Stop right there. Right there is the difference. They transfer to the ND Cal not knowing which judge they will get. That is the point. It is improper for either party to pick the judge.

              Either both parties mutually agree on the judge (as occurs in some arbitrations) or neither party picks the judge. Those are the only two proper and ethical options. Allowing either party to pick the judge without the other’s consent is so obviously improper that I am embarrassed to need to explain this point.

              1. 3.1.1.1.1.1.1

                Allowing either party to pick the judge without the other’s consent is so obviously improper

                LOL – definitely NOT impressed with Greg “I Use My Real Name” DeLassus — given as he demands evidence from others, but is perfectly fine with asserting a value judgement as if it were an edict from heaven.

                If a judge within a Federal District is abusing their role, then the PROPER response is for that District to take appropriate action. The proper response is NOT to go ‘all activist’ and demand things that one is in no position to demand, and base that on one’s own ‘feelings.’

              2. 3.1.1.1.1.1.2

                Greg: “They transfer to the ND Cal not knowing which judge they will get.”

                Because they don’t have to know.

                Because they’re all equal-opportunity patent destroyers.

          2. 3.1.1.1.2

            I think that it is a mistake to frame this as a [ ] problem

            Of course you do. And it’s easy to see why, THAT type of framing let’s you avoid seeing whether or not any actual issue is present that may “require” your officious intrusion.

            Rather than such nannyism, Wt’s “root cause” approach is not only better for CA5, it would be better for all of patent law and innovation protection.

        2. 3.1.1.2

          Good arguments for specialized patent judges [but not just only one or two SELF-selected]. But ironically supported by some of the same trial attorneys who are the biggest critics of Congress having already just that with the Federal Circuit.

          1. 3.1.1.2.1

            Or, to make it even clearer, if Congress did set up a specialized District Court for patent suits, guess who would get to appoint the judges? [The same folks that pick Fed. Cir. judges, and not PAE attorneys.]

            1. 3.1.1.2.1.1

              Or, to make it even clearer, if Congress did set up a specialized District Court for patent suits, guess who would get to appoint the judges? [The same folks that pick Fed. Cir. judges, and not PAE attorneys.]
              And there should be a requirement that this specialized District Court gets judges who have experience in the area (e.g., clerked for patent judges and/or practiced as patent litigators).

              Your reference to PAE attorneys is misplaced. There are operating companies that want to go into the WDTex as well. This isn’t all about PAEs — but then again, isn’t it always with you?

              1. 3.1.1.2.1.1.1

                but then again, isn’t it always with you?

                Exactly my impression – WHY is Paul so absorbed with the identity of the holder of the patent right? There is NO substantive right differentiating as to the owner of that right — something that was a foundational piece of the US patent system right from the start (the patent right being a property right that is FULLY alienable).

                This is but another reflection of the Efficient Infringer mantra.

          2. 3.1.1.2.2

            Good arguments for specialized patent judges [but not just only one or two SELF-selected].
            Specialization is usually SELF-selected.

            Bad results come from forcing people to do something that they don’t want to do. Which is why many patent plaintiffs head to the WDTex — they don’t want to get stuck with a judge that doesn’t like and doesn’t want to handle a patent case. Again, fix that problem and the problem of venue shopping largely goes away.

      2. 3.1.2

        –Judges for this court would be required to have a PTO reg. number, so that one can be sure that they have a science background and a familiarity with patentability law.–

        In a perfect world, do you want this requirement also to apply to the judges of your ideal centralized appellate court?

        1. 3.1.2.1

          In an idea world, the Federal Circuit would be permanently bifurcated into two courts — one handling the mishmash of non-IP cases that currently go to the Federal Circuit and one handling IP cases. Those that handle IP cases should at least be able to qualify to get a PTO registration number and/or have a certain number of years practicing in intellectual property — and not just trademarks and copyrights.

          The point of having a technical degree isn’t to ensure that the judge knows the technology. Rather, the importance of a technical degree is to provide some reasonable expectation that the judge’s eyes won’t glass over when some technical points are being raised. An engineering degree (or something comparable) is evidence that the person has some aptitude in learning new technology. That’s the most we can reasonably hope for.

      3. 3.1.3

        Translation (for those who mistake Greg as being anything other than Big Pharma):

        Do not let the perfect be the enemy of the better.

        He does NOT advocate better (i.e., Wt’s root problem). He advocates for wheeling in that lovely large wooden horse within the city walls.

    2. 3.3

      When receiving a cancer diagnosis, I doubt most people are going to want to be treated by their general practioner… Things like the law, medicine, and technology have gotten so complicated that a single person cannot be reasonably competent in all aspects. For this reason, we’ve seen more subject matter experts and less generalists.

      Agreed. I am not really convinced that generalist judges should be regarded as the “ideal.”

  9. 2

    Still at point (and absent from the write-up):

    How has the CA5 policed itself? As this bears directly on Greg’s point that the permissive law is to be judged in the first (controlling?) instance BY CA5, this is a critical point.

  10. 1

    Thank you for this important research into more if what is going on in WDTX and its sole D.C. judge, Judge Albright.
    As a minor peeve, the new to me term used here for patent suit plaintiffs in WDTX – “a litigation-funded assertion vehicle” – is accurate and limited, but adds to the existing burden for doing computer case searching that is already imposed by needing to look for the alternate terms “PAE” or “patent assertion entity” [commonly used and accurate], NPE” or “non-practicing entities” [overly broad], and “Patent Trolls” [too often interpreted overbroadly or objected to by PAEs as derogatory.]

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