Summer time and the living is easy, so I’m a bit delayed in this week’s post. Apologies. In this week’s post, I highlight shifts in the patent litigation environment in Texas.
The Eastern District of Texas, especially Marshall and Tyler, used to be the top venue choice for patent owners who wanted a fast path to trial from a favorable judge, and predictability and choice of judge. This arose due to a number of factors which have been well covered. From about 2010-2015, various changes in patent law, regulation, rules and policies resulted in another shift in where patent suits are filed. Though East Texas remains popular, it’s changed a lot and far less popular.
A lot of that EDTX-destined litigation moved to the other side of the state, to the Western District of Texas. More particularly, the WDTX courthouse in Waco, where only Judge Albright sits, rather quickly became the new hotbed for patent litigation. Interested “citizens” apparently pressed Senators Tilley and Leahy for help, and they wrote a letter in November 2021 to the Chief Justice of the U.S. Supreme Court asking the Chief to exercise their oversight responsibility and stop the games. See https://www.ipwatchdog.com/2021/11/03/criticism-judge-albright-looms-large-tillis-letters-hirshfeld-chief-justice-roberts/id=139581/#
Eight months later, and it looks like the Waco option won’t be so good any more. The wheels of justice turned slowly, or maybe the Chief Judge of West Texas has been too busy with the conflict of interest scandal. See https://www.forbes.com/sites/graisondangor/2021/09/28/over-100-federal-judges-heard-cases-despite-conflicts-of-interest-report-says/?sh=15c27ca4ae60 There’s a new case assignment rule in WDTX, specific only to patent suits, and more specific only to suits filed in Waco:
Upon consideration of the volume of new patent cases assigned to the Waco Division, and in an effort to equitably distribute those cases, it is hereby ORDERED that, in accordance with 28 U.S.C. § 137, all civil cases involving patents … , filed in the Waco Division on or after July 25, 2022, shall be randomly assigned to the following district judges of this Court until further order of the Court.
A good discussion of the Waco case counts and gaming is here: https://www.mondaq.com/unitedstates/patent/1216936/chief-judge-of-western-district-of-texas-changes-waco-patent-case-assignment-system
Despite the rise in popularity of Waco, EDTX remains popular (but not as popular as in the past). That brings me to a recent decision of the Court of Appeals for the Federal Circuit, in Vocalife v Amazon. Vocalife sued Amazon in 2019 alleging that Amazon’s Echo device infringed Vocalife’s patent. In 2021, Vocalife sued other smart speaker manufacturers Sonos, Google, Bose and Harmon, also in EDTX. Sonos and Google uncorked petitions with the USPTO’s PTAB to invalidate the Vocalife patents. The suit against Amazon went to trial, and the jury concluded that Amazon infringed and owed $5M.
On appeal, in a non-precedential opinion, the CAFC reversed the infringement holding. Judge Hughes wrote the decision for a panel including Chief Judge Moore and Judge Prost. As explained by Dennis Crouch, the Federal Circuit interpreted the claims more favorably for Amazon, though without actually writing about claim construction. The claims recited that the microphones have “a plurality of configurations.” However, the Amazon Echo products were made with microphones in fixed positions. It seems that the jury was thinking of a home with multiple Echo devices which could be moved around, but the CAFC panel thought the claim limitation was specific to one unit. There was also an interesting issue of intervening rights because the Vocalife patent was a reissue.
It’s going to be a beautiful weekend. Hope, like me, you’ll spend some lazy time reading more about Waco and Echo. I’ll dive into the numerous district court and PTAB cases. Hopefully too, you can join us for SoCal IP Institute to discuss all this in more depth.
/Steve Sereboff/
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