PublishedAugust 3, 2021

Federal Circuit to Judge Albright: You Get An F

In yet another mandamus order directed to the Western District of Texas, the Federal Circuit has once again explained to Judge Albright that his analysis of transfer motions is incorrect and ordered him to send a case elsewhere.  It’s worth reading the entire order in In re Hulu, but if you don’t have time, I can sum it up for you: Judge Albright got pretty much everything important wrong.

Yet again, the Federal Circuit found that Judge Albright “clearly abused [his] discretion” in denying transfer.  Of the factors that are weighed when determining a motion to transfer, Judge Albright found that two factors slightly favored transfer, three factors weighed against transfer, and three factors didn’t apply.

The Federal Circuit disagreed.  Of the three factors Judge Albright found to weigh against transfer, the Federal Circuit found one to be neutral—and the other two to actually weigh in favor of transfer.  And of the factors that slightly favored transfer, the Federal Circuit suggested that the analysis employed by Judge Albright was incorrect and that the factor might better be understood as significantly favoring transfer.

Judge Albright has joked about how he “may get guidance from the people that grade my papers at some point that that’s not the right approach.”  And this is yet another instance of that kind of guidance.  But this order isn’t his graders saying he got it a little bit wrong and marking him for a B.  This is having every reason you relied upon to deny a transfer marked “incorrect”—it’s your graders telling you you failed completely.

But even though Judge Albright has been corrected repeatedly by his graders on the Federal Circuit, those orders don’t seem to have had any impact.  Judge Albright continues to issue orders denying transfer—orders like the one the Federal Circuit sent back today in In re Hulu.  And because of rulings like that one, Judge Albright’s courthouse is the single most popular courthouse in the country for non-practicing entities.  So much so that he’s been given permission to hire a second magistrate judge to help him out.

Not, of course, that that magistrate will be working on patent cases.  No, in Waco, if you’re facing federal criminal charges or have a serious federal civil dispute over contract terms or damages to your property, or if you’re a police officer who was forced out of his job because you spoke publicly about issues in policing, your case goes to a magistrate judge.

What is the Federal Circuit going to have to do to rein this in?

Josh Landau

Patent Counsel, CCIA

Joshua Landau is the Patent Counsel at the Computer & Communications Industry Association (CCIA), where he represents and advises the association regarding patent issues.  Mr. Landau joined CCIA from WilmerHale in 2017, where he represented clients in patent litigation, counseling, and prosecution, including trials in both district courts and before the PTAB.

Prior to his time at WilmerHale, Mr. Landau was a Legal Fellow on Senator Al Franken’s Judiciary staff, focusing on privacy and technology issues.  Mr. Landau received his J.D. from Georgetown University Law Center and his B.S.E.E. from the University of Michigan.  Before law school, he spent several years as an automotive engineer, during which time he co-invented technology leading to U.S. Patent No. 6,934,140.

Follow @PatentJosh on Twitter.

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