PublishedNovember 3, 2021

Sens. Leahy and Tillis to Chief Justice Roberts: Something’s Up In Waco

The Senate Judiciary Committee’s IP Subcommittee had an active day yesterday with members sending out a pair of letters that suggest that they see some serious problems in the patent system.

The first letter, sent by both Chairman Leahy and Ranking Member Tillis to Chief Justice Roberts, in his role as head of the Judicial Conference, expresses serious concerns about the Waco court—and especially about Judge Albright’s behavior.  Referring both to Judge Albright’s history of soliciting patent cases to his court and to his poor track record at the Federal Circuit—15 grants of mandamus and counting—Sens. Leahy and Tillis express concern about the lack of guidance on case assignment within a single district for patent cases and the abuses it enables.  While their letter states they’re not aware of similar problems in other single judge divisions, there’s some evidence of this type of shopping in other arenas—manipulation of bankruptcy trustees and even more concerning, forum selling in the area of large company bankruptcies.  The letter closes by requesting the Judicial Conference study the abuses the present situation enables and provide recommendations for how the problem could be fixed.

The second letter, sent by Sen. Tillis to Acting Director Hirshfeld at the USPTO, notes that the second Fintiv factor for discretionary denial relies on trial dates that have proven to be extremely inaccurate.  The Fintiv analysis is usually based on trial dates set early in the case, but those trial dates are almost always not the dates on which trial actually occurs, with trial typically happening months later because scheduling and docket changes push back the original trial date.  While supporting the goal of reducing duplication in the patent system, Sen. Tillis notes that the Federal Circuit has rejected the use of the Waco Division’s trial dates in the context of venue transfer motions and calls into question the USPTO’s use of the inaccurate trial dates in the Fintiv analysis.  Sen. Tillis requests that the USPTO consider whether Fintiv should be modified to account for “unrealistic trial scheduling” and provide a response by the end of the year.

Sen. Tillis and Sen. Leahy clearly recognize the problems in Waco and at the PTAB, and their leadership on these issues is much appreciated—now it’s time for stakeholders in the judiciary and at the USPTO to take action.

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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