Patent Lawyer Turned Judge Advertises for Patent Trolls to Come to His Court
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Prior to Albright's appointment, none of the judges in the Western District wanted patent cases. They openly and repeatedly said so. Patent cases were unreasonably slow in the district, and the judges essentially said "we don't like or want these types of cases."
As a former patent litigator, Albright wanted to make clear that the Western District now has a judge who welcomes those cases, as opposed to shunning them. It's also his area of expertise, and attorneys frequently complain that most judges are ill-equipped to conduct patent cases due to the specialization of that area the law.
The notion that Albright is a "patent troll" friend is incorrect. The clients he has represented are all there in public court filings. He has represented big tech (including Facebook). He has represented pharma companies. He has represented small companies. He has been on both the plaintiff and defendant side. I believe that most attorneys do not consider him to be pro "patent troll."
Apple is the primary litigant that wants to transfer out of Texas courts. The judge is only part of the reason. They also really want California juries.
There's the problem of possibly being too friendly towards patent trolls. But there's also the problem of supporting and encouraging frivolous patent litigation overall.
Patent lawyers (and apparently now judges) don't really care who wins. Their business thrives if there's simply more litigation around patents. They'll see companies file more patents, need more consultation, and work on more cases.
In that light, whether Mr Albright worked for either side doesn't really make a difference. The point is that his specialization is set to gain from more litigation. More litigation comes from more patent trolls, so questions regarding the impartiality are appropriate.
Fine, fresh, fierce, we got it on lock
West Coast represent, now put your hands up
Oooh oh oooh
1. Random assignment of judges to cases.
2. Any judge accused of failing to recuse from cases with a conflict of interest has to face a randomly chosen panel of judges. If the panel agrees that the judge has deliberately taken on cases with a conflict of interest, the judge can be removed from the judiciary.
The first would make shopping for a judge harder. For the second, the way he advertised and then his behavior when he got the cases is hopefully enough to convince a panel of neutral judges that he is biased.
The first would be a relatively easy change to make. The second is complicated by the Constitution, which reserves impeachment of judges to Congress. Something which has only happened 15 times.
However https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?arti... argues, convincingly to me, that it is within the power of Congress to write a law enabling other judges to remove a judge. (Though not to criminally charge him for his behavior - that still requires Congress.)
You may want to check out how elections were done in Venice in centuries past. They thought they could randimize their way to fairness too, it looks pretty silly and ineffective in retrospect: https://www.venetoinside.com/hidden-treasures/post/the-elect...
The legal system is for the exceptions, the places that automated systems break down, the places that need human judgment.
That's the importance of a free press. We can't work without trust, we need it, even though it introduces certain risks.
It's easy to do worse than random. Trying to do better than random often ends with doing worse than random, while aiming for randomness usually ends with randomness.
> They thought they could randimize their way to fairness too, it looks pretty silly and ineffective in retrospect:
I see information about the process but none about how and why it failed.
Cases normally are assigned a case number anyways already. So lets start from case number 0.
First lets choose a nothing up my sleeve number. Let say like the fractional part of the PI with the bit length of some secure hash function. We can treat this case -1 or the initial state.
The plaintiff and defendant each generate a private and public key pair. They then give each other their public keys. The plaintiff and defendant each sign the what will become the previous state with their private key. XOR the the two signatures together and then hash the XOR-ed signatures. This gives the new state. We then take this new state and take it to the modulus for the number judges. Just repeat this for each case new case.
Neither the plaintiff nor the defendant should be able to directly influence who their judge is in this system. Also both can verify that other party performed a proper signature. Although there could be gotchas depending on the underline primitives from hash function to signing algorithm.
Also, your method is biased towards lower-number judges when the number of judges is not a factor of the range of the output of your hash function. Use an existing library instead.
I could sit down try to figure out a construction that adjusts/accounts for any given N judges. Again though like I said this was just quick thought off the top of my head showing it seems possible to make a construction that can choose judges. Not something with every possible detail refined.
However, modular bias becomes smaller the larger your max number gets. We are not talking a small 32 bit random generator here. While it would be ideal to eliminate the bias it's not exactly easy. One could try the method of re-rolling/generating till you get an output in the target range. This has a massive problem because it is improbably at the scale of these numbers. Secondly, one can't control the modulo N in this case. There are things we can try to smear the bias, but that does not eliminate it.
Moreover, as mentioned before the scale of max output works in our favour here. The larger your max output/range is the smaller the bias is. Anyways there is a reason the CPRNGs will just truncate their output when you tell one to return X bytes. The range of possible bias is so small because how large cryptographic numbers are. Although some algorithms max output is a power 2 so the modulo N works out nicely.
The worst a bias like this can do is make partitioning cryptanalysis stronger, but unless you made some really bad choices generally should only be a theoretic break. At which point your designing primitives and not a protocol. However, that part we are using the modulus on is not secret so we are not gaining/losing anything there. For this instance it's just extremely tiny bias towards a certain judge.
If even one of the parties submits a fairly chosen random number, and manages to conceal it from the others until they've submitted their numbers, then the result will be a fairly chosen random number. Then no one involved will have standing to complain that the result wasn't chosen fairly enough.
Exactly.
We can't trust judges. And we're in a lot of trouble.
The default assumption should be that people are corrupt given the right incentive which in this case shows. It's not perfect but it's better that someone is not certain that they are able to attract certain cases for future.
Alexander Hamilton wrote in the federalist papers that we need juries to protect us from corrupt judges.
What specific problem were the Venetians trying to solve with that design, and how did it turn out to be ineffective?
They're just humans. They are not to be trusted by default until they prove otherwise.
Moreover, what if the randomizer picks one out of 297 judges, 235 of whom are known to be biased? Then it doesn't help much.
We should trust judges.
We should also create a system that strives to reduce the chance that individual judges could get to a point where they're less than trustworthy. Judges are people too, and respond to incentives. And yeah some individual judges suck, and are bad at their jobs. Like some doctors, and some lawyers, and some engineers.
A system that reduces their impact and influence, like randomization does, minimizes the harm of a bad apple, and also reduces their blast radius. They can't advertise that they'll adjudicate your case.
After all, isn't this why we have appeals courts? If you could trust your individual judge implicitly, why allow an appeal?
Trust, sure, but verify.
> Or what happens if I accuse the randomizer of being untrustworthy?
Open source the RNG. Let people see for themselves. Publish the stats that show it's a uniform random distribution.
That's a suspiciously strong claim given the enormous number of options for laundering money/value indirectly. What makes you so sure his contribution to patent trolls' cause is completely unreciprocated?
That was so egregious that it broke the news.
And disbarred. He shouldn't be able to say "oh well, I tried. I guess I'll go back to lawyering."
I can definitely see the benefits, but don't we also want judges to have domain knowledge?
"As they note, it seems like an easy thing to fix if Congress had the will:
Two reforms would help solve this problem: first, district judges should—by law—be randomly assigned to cases and, second, venue in patent cases should be tied to geographic divisions within a judicial district, not just the district as a whole."
Ah, there's the problem. If it's not appointing Judges, good luck getting Congress to do it.
It seems obvious that this guy is corrupt, but exactly how? Presumably the federal government doesnt pay per case. Does he have an interest in a local law firm? Does he get kickbacks in cash? Or is he planning on returning to practicing law in a few years through the revolving door and this will raise his profile?
I guess we shouldn't rule out the possibility that he just feels passionately about patent law and shaping the American legal landscape to his own opinions. The late Justice Ginsberg was widely praised for the same. But somehow it's harder to believe in this field.
Stare decisis. He can load whatever judicial circuit he's in with patent troll friendly precedent. The only way to undo it is at the appellate or Supreme Court.
If you can't see where the conflict there is, I'm not sure I can make it any clearer. That he actively advertised to attract court traffic to his jurisdiction should be quite alarming. That he's already "telegraphed" his proclivities should be grounds for at a minimum an ethics inquest.
A blatantly prejudiced judge bodes well for no one.
I think you are implying that he will get back into the private sector after having granted some valuable patents to some of his friends, hopefully landing a great consulting gig or job with them? Or just start his own?
To me this is a red herring. What this judge is doing has all kinds of problems regardless of what his motive is. Even if the judge thinks he's doing it for the good of the legal system and won't accept any personal gain at all, he's still wrong and he should be stopped.
- Owns a stake (or has family who does) in a local patent-focused lawfirm
- Plans to return to private practice after precedent is set and expects precedent to increase income
- Seeks future political influence with people who would benefit from biased opinions on cases
[0] https://www.uscourts.gov/judges-judgeships/judicial-compensa...
The judge who originally made East Texas a haven for patent trolls, T. John Ward, on the other hand, certainly did act improperly. In particular, his son owned a law firm which specialises in representing plaintiffs in his father's court. That firm now employs Ward senior.
https://thepriorart.typepad.com/the_prior_art/2008/03/judge-...
Since the Supreme Court's T.C. Heartland case, patent cases can only be brought in the defendant's state of incorporation, or "where the defendant . . . has a regular and established place of business."
In practice this means that a plaintiff has to bring a case where the company has a presence, or in its state of incorporation.
Typically a patent plaintiff does not want to sue in a defendant's home jurisdiction, because there is a perception that a defendant has an advantage on its home turf, and the patent holder won't get a fair shake.
A patent plaintiff also typically does not want to sue in a jurisdiction where the judge may have little or no patent law experience, because it greatly increases the risks to everyone involved. Patent law can be tricky.
That leaves the state of incorporation. Conveniently, Delaware—the most common state of incorporation and the jurisdiction where I practice—has a federal judiciary that is exceptionally experienced in patent litigation. It's a great forum for cases.
That said, it's also a small court, with only four sitting judges. Almost every year for more than the past 10 years, it has ranked among the busiest courts in the country by number of judges. Even though the Delaware judges are absolute experts on patent law, it would be tough for any four people to deal with the torrent of patent cases that get filed here. So things like decisions on motions can sometimes be slower than some other courts.
Because Delaware can be congested, and defendants' home turf (often California) is seen as biased, plaintiffs sometimes seek other options.
You could view what Judge Albright is doing as saying "hey, plaintiffs, I know all about patent law and my court is not busy. You're safe to file here and you will get a judge who is not bothered by a patent case, with a fairly predictable outcome based on the merits of the case."
That's maybe "selling" in the sense of marketing, but it's certainly not "corrupt" in any way.
That is an important distinction that the article overlooked. It also means that unlike the Eastern District, which doesn't contain any major metropolitan areas, the Western District includes Austin (as well as San Antonio, El Paso, and Corpus Christi). Companies will be far more reluctant to pull out of the Western District to avoid patent cases having jurisdiction there like they did with the Eastern District.
“I didn’t come to this job to retire,” Albright said. “I came to this job and I took this job in Waco because I thought it was the perfect place to try and establish a serious venue for sophisticated patent litigation, and it has proven to be just that." [0]
“There is nothing I enjoy more than working on patent cases. I think, by and large, the lawyers are exceptional and the issues before me are always intellectually challenging. I couldn’t imagine a better docket than what I’ve got. I feel unbelievably lucky.” [1]
“When people file here, I think they can feel comfortable with my 20 years in patent experience and [law clerk Josh Yi's] 10 years as a lawyer and his technical background that they will get a fair process with someone who knows what he is doing,” Albright said. [2]
A quote about Judge Albright from David Henry, who teaches patent law and litigation at Baylor University Law School and knows Judge Albright:
“Judge Albright is a person who is very, very principle-driven,” he said. “He takes the position and the social responsibility very, very seriously. It’s something he thinks about all the time. I’ve heard him say on numerous occasions, ‘I want to get this right.’ [3]
“And one aspect of getting it right for him is giving patent litigants another option for taking or defending their patent cases in a forum with someone who truly is an expert in that field.” [4]
[0] https://wacotrib.com/news/local/waco-becoming-hotbed-for-int...
[1] Id.
[2] Id.
[3] Id.
[4] Id.
There is a downside though, where this differs from SDNY and bankruptcy. Patent law could benefit from major reform to eliminate abusive lawsuits and decrease transactional costs of enforcement and defense. Because patent owners can still shop around for some lawsuits, a judge trying to build a docket like this does not have an incentive to implement that major reform from the ground up. Any reform would only be tweaks, not paradigm shifts (like the local rules mentioned above). The problem is akin to regulatory capture.
No one disagrees. But that reform should come from legislation, not judges. Judges are supposed to apply the law as written to the best of their abilities.
Generally speaking it would not be ideal for a case filed in one location to be assigned to a judge in another location.
Many district use random assignment for most cases, but for those more complicated and technical cases, try to assign them to a judge that has experience with them.
Patent litigation is one such type of litigation.
But having come from a career where his entire existence depended on patents being broad and strong and enforceable, it's hard to suggest with a straight face that such a judge would be impartial on matters where those specific matters are in question.
It'd be like asking Pele his favorite sport, except people's livelihoods depend the answer. You can't be serious.
I actually don't understand what this guy's motivation is, however. The article doesn't really address it. I kind of get the sense he is a True Believer [tm] in patent holder "rights" and is using his position to advance that view.
It's kind of scary that a big part of why patent litigation is so out of hand comes down to just 2-3 people who happen to be Federal judges.
I really thought by now that this situation would've been so out of hand that the Supreme Court would've been forced to put a stop to it but no, the Supreme Court has done everything it can to avoid taking a stand on patent issues despite the glaring evidence that they need to.
It's kind of disappointing that the Oracle Google case wasn't decided in the last term when RBG sat on the bench. Who knows what will happen now? And yes I know that's a copyright case (now) not a patent case but it fits into the whole IP nonsense.
Other commenters have mentioned random assignment of judges. That already happens. In this district this just happens to be the only guy. In the Eastern District at a certain time there were two judges. Patent holders preferred one. I remember reading that they would employ a law firm that employed the son of the judge they didn't like so he'd have recuse himself and they could get the judge they want.
This forum shopping crap has to stop.
* He's effecting political change in the direction he desires
* Kickbacks to families, friends, and relatives
1. why a judge advertises himself to lawyers, does he/she get special bonuses from those cases?
2. Why lawyers in America can assign their cases to specific judges
3. why the hell are Americans so litigious
Because the government doesn't proactively enforce civil/corporate law, instead waiting for a law suit.
Because we don't have social healthcare, so suing for liability is the main way to pay for injuries.
Because USA culture is that individuals have rights that should not be trampled upon by the State or other people.
Because the US Constitution created a judiciary system independent of the executive, where individuals can seek justice even when the executive ignores them.
Most cases aren't about fundamental Constitutional issues that you can bring before a court by right.
There are so many lawsuits because Congress has given the right to sue over so many laws. Or, put another way, created laws and regulations whose content and loopholes enable people to sue under those terms.
If the laws were absolutely clear and drew bright lines for many things, there would not be the ambiguity to sue.
I think it is generally a product of our own creation. Yes there are more diverse commercial interests and entities now than 40 years ago, but Congress has equally generated the complexity you see.
The courts are absolutely drowning under this load. Effectively, the likelihood of your case being heard is now low enough that settlement is likely how the matter is going to be resolved.
You admit to not knowing much about the US on this matter, then proclaim extraordinary knowledge on the subject.
The answer is, they're not by and large. There are specific sections of the US that are highly litigious however. The majority of Americans are rarely litigious, which shows up in the numbers every time someone does an exhaustive study of who is filing lawsuits in the US.
http://www.buffalo.edu/ubnow/stories/2017/01/engel-book-liti...
https://www.theguardian.com/commentisfree/2013/oct/24/americ...
This doesn't feel like the right answer. Judges should feel free to make an unpopular judgement if it's what the law dictates.
This is an opinion.
The country is the country of people, they establish all the mechanisms. Including law.
The "country of people" legally is written in founding papers, but here we're questioning on the level of founding papers. Constitution offers a mechanism to change it as a whole; but there currently are other mechanisms too. Working judges impeachment should perhaps be practical - or it should be clear why not.
For example, it was the sole reason a lot of people voted for Trump: because at this moment in history there happened, through sheer chance, to be this hugely disproportionate opportunity for a party to grab power that will last a generation. Just because a bunch of people retired around the same time. And this momentous opportunity completely hinged on what would already be the most important single election in the land. That doesn't feel remotely like what the founding fathers intended.
It wasn't sheer chance. It was Senate Majority Leader Mitch Mcconnell subverting the Constitution with a coup, refusing to even let the Senate consider whether to approve Presidemt Obama's nominations. And now that Mcconnell has eliminated the principle of upholding the Constitution, we can expect the same from every Senate for at least a generation, and judges will only be appointed when the President and the Senate are the same party.
Even sheriffs shouldn't be elected, never mind judges. How this ever became an accepted practice in America is beyond my comprehension.
The idea is that people are choosing how to live, and make common rules using government bodies.
Elected judges fit this idea. Why it's a bad idea?
For the same reason that it's insane to have two wolves and a sheep vote on what they are having for dinner.
You elect representatives, who set the law. The job of a judge is to enforce that law impartially. Looking at the track record of elected officials, it should be pretty clear that impartiality is not something that elections select for.
i.e. a judge's job is to interpret the law for a case, so you don't want to impair that with other incentives. i.e. the best judge is a program that, supplied the law and supplied the evidence, provides a judgment that most precisely approximates the law's intent in this situation. This can be very far from the people's present intent.
So if you give the people too much power over the judge, they will transform law-execution into present-intent-execution, something we do not desire.
If law were totally unambiguous and evidence were totally unambiguous, we might be fully constrained. An elected judge would still be unable to appease the crowd. But we know something: law is ambiguous and evidence is also ambiguous. We need the human here to disambiguate and match against statement and then intent. And adding political necessities to that process hurts it.
Are you assuming present-intent is clouded with short-termness?
In general, people want government officials (like judges, here government is in a large sense) to do what they, people, want. Maybe not immediately - though it's a complex questions, with assumptions and counterarguments, but not clearly leading to your conclusion.
We also see that modern state - where laws are complex and judges have leeway to interpret them how they present-intently want, has drawbacks. That's the problem which we face - and want to fix. How's your problems bigger than this one?
> We need the human here to disambiguate and match against statement and then intent. And adding political necessities to that process hurts it.
We somehow don't have mechanism to ensure the intent of a judge is as we expect it to be. Sometimes honestly - I can imagine e.g. a conservative judge who really never imagined a marriage for couple of the same gender (not a very good example, sorry).
https://courts.uslegal.com/selection-of-judges/state-by-stat...
We shouldn't want politics in court.
Source: https://www.reuters.com/investigates/special-report/usa-deat...
The branches of the US government are meant as a check against power mongering by the other two branches. We modified other attempts at doing so, and others have done the same with ours.
Normal court cases may not be about politics, but appellate and supreme court cases often are. I can appeal a ruling around a law by putting the law itself on trial, invalidating all or parts of it. If Congress doesn't like it, they can come back and try to change the state or federal constitution to put it back, but that is so difficult that only some very big items make it through.
Where a lower court judge can make a mess is by generating more appeals than we (the People, or the Defendent) can afford to pursue. I think it would be disingenuous to say that isn't also political. I don't see how a judge who favors one side of an unresolved policy dispute can avoid generating extra work for the higher courts. However, they may piss enough people off that the resources are allocated to settle this once and for all, legislatively or judicially.
Personally I strongly favour this approach. Judges should not be overtly political, and the process for their appointment should be closer to the way we certify doctors than to the way we choose politicians.
The English system doesn't provide an ironclad guarantee against political meddling, but there's always a tradeoff there: we want both accountability and independence, and these are opposing. (Also, I'm English, for what that's worth.)
https://www.judiciary.uk/about-the-judiciary/the-judiciary-t...
https://en.wikipedia.org/wiki/High_Court_judge_(England_and_...
Tbh it's a major source of depression for me. We're boned and I don't see any chance as a world of us getting better. Humans it seems just aren't nice people.
2. It's not like he has some corrupt motive to encourage patent cases to be brought in his court (he doesn't get paid per case or anything). Patent plaintiffs just prefer a judge who has expertise in patent cases. So what?
[0] https://wacotrib.com/news/local/waco-becoming-hotbed-for-int...
The "hundreds of references" don't have anything to do with what I asked.
It's like the Court of Chancery in Delaware being the place where a lot of corporate governance issues get litigated. It's not because of bribery, it's because that's where the expertise is.
And obviously someone known to be biased towards plaintiffs is not the sort of person that should be well respected among the general population.
What I wrote earlier, that plaintiffs choose which district to sue under, so they pick the district that they feel will have the strongest likelihood of ruling in their favor-- should not be controversial. This is Law school 101 type stuff.
I believe you when you say you are a patent attorney, but I also fear you are posting misinformation here.
I believe a competent law professor would talk about "plaintiff friendly" courts and what you've posted here, about "respected" judges, suggests you are an untrustworthy poster.
Judge Albright’s record does not show him to be patent-troll-friendly, or even patentee-friendly. It shows him to be smart, knowledgeable, and principled. His is exactly the kind of court a plaintiff or a defendant should be happy to be in. Efficiency in disposing of cases cuts both ways, you know.
Anyway my clients aren't patent trolls. My clients tend to be the kinds of companies that get sued by trolls.
> Immediately upon his appointment as a district judge in 2018, Judge Albright went on a media blitz, letting everyone know that his court would welcome patent litigation.[149] The Waco Tribune-Herald reported that Judge Albright “let it be known in no uncertain terms that he would like his Waco courtroom to become a hub for IP cases.”[150] He attended dinners for patent litigators and patent owners to extoll the virtues of trying patent cases in Waco.[151] Judge Albright stated that he took the position in Waco because he “‘thought it was the perfect place to try and establish a serious venue for sophisticated patent litigation.’”[152] Most tellingly, he gave a presentation at the 2019 annual meeting of the American Intellectual Property Law Association titled, “Why You should File Your Next Patent Case Across the Street from the ‘Hey Sugar,’” referring to a candy store near his Waco courthouse.[153]
[149] Waco’s New Judge Primes District for Patent Growth, LAW360 (Feb. 12, 2019) https://www.law360.com/ip/articles/1128078/waco-s-new-judge-....
[150] See generally Tommy Witherspoon, Waco Becoming Hotbed for Intellectual Property Cases with New Federal Judge, WACO HERALD-TRIBUNE (Jan. 18, 2020), https://www.wacotrib.com/news/local/waco-becoming-hotbed-for....
[151] See Scott Graham, Skilled in the Art: How Far Can Judges Go in Touting Their Districts?, LAW.COM(Sep. 3, 2019), https://www.law.com/2019/09/03/skilled-in-the-art-viasat-dem... (describing a dinner hosted by Ocean Tomo (a patent evaluation company) and featuring Judge Albright in which the judge “spread the word far and wide about how his Waco court would be a great place to try IP cases”).
[152] Id.
[153] See Britain Eakin, New West Texas Judge Wants His Patent Suits Fast and Clean, LAW360 (Oct. 25, 2019), https://www.law360.com/articles/1213867/new-west-texas-judge....
Contemporary corruption isn't that simple minded.
The patent trolls and other litigants involved in these cases employ the sons and daughters and son-in-laws and daughter-in-laws and extended family members and friends of the congress persons that fund courts. They do this through $500k/year nonprofit chairpersonships and choice positions in wealthy corporations and other institutions, and nifty positions on the rowing team so Johnny gets into Harvard. The judge gets a well funded court with lots of clerks and other staff the Judge gets to pick, and a docket full of cases with billions of dollars at stake. So the judge gets courted by the most wealthy and influential people in the world.
People that eat most of their dinners with the circle of lawyers that work for Apple and Google and Disney and all the mysterious hedge funds tend to live in multiple enormous houses and have burgeoning bank accounts.
Nothing suspect about this at all.
Not that it's really relevant to the story, but "West-Texas-oil-country" is actually in the Northern District of Texas, based in Dallas. The "Western" District is mostly central Texas, then extending west along the US-Mexico border.