With the transformation of his Waco courtroom into the venue for more than 25% of all patent cases in the United States, Judge Albright can’t keep up with all the business he’s “drummed up” for his courtroom. He’s made heavy use of technical advisors—one of whom made more than $700,000 in the first half of 2021 alone—as well as deferring almost all non-patent cases to his magistrates for all pre-trial proceedings.
But even with a magistrate and technical advisors, it seems like Judge Albright needs more help managing the patent docket he created in Waco. Earlier this year, the Judicial Conference authorized a second magistrate judge for the Waco court. And Judge Albright has arrived at his selection for that role, naming litigator Derek Gilliland to the position.
Gilliland is a Texas lawyer, most recently operating out of Tyler in the Eastern District of Texas. But Gilliland hasn’t been a stranger to Waco. Most recently, he was plaintiff’s counsel in multiple NPENon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it. More lawsuits in front of Judge Albright. Two of them stand out as particularly noteworthy.
In the first case, Gilliland helped represent Profectus in its lawsuit against Google. At trial, a jury found Google didn’t infringe the patent. This probably wasn’t a surprise to Gilliland—after all, Profectus had previously unsuccessfully asserted the same patent against Apple, Samsung, and Dell.
But it’s the second case that really drives home the concern with Gilliland. Gilliland represented Ikorongo in its litigation against Samsung. And in that litigation, Ikorongo engaged in a “bald-faced attempt to manipulate venue,” playing games with assignment of its patent to try to keep the case from being transferred out of Judge Albright’s courtroom. The Federal CircuitSee CAFC rejected this tactic as “collusive,” “artificial,” and “manipulative.” (CCIA filed an amicus brief in this case arguing that Ikorongo’s venue manipulation tactics were impermissible.)
These aren’t the only examples, only the most recent ones. Gilliland has also regularly represented hedge-fund backed NPEsNon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it. More like Intellectual VenturesThe largest patent aggregator, currently holding around 40,000 patents. Closely associated with co-founder Nathan Myhrvold. IV is often viewed as a patent assertion entity, although much of its activities are conducted through spinoffs, and the company is at least nominally in the business of producing inventions in-house. See our posts on Intellectual Ventures. and Fortress subsidiary DSS.
Charged with finding a magistrate who would engage in the “expeditious, proper, and impartial performance of their duties as judicial officers,” Judge Albright selected a plaintiff’s lawyer who most recently represented a client who engaged in collusive and manipulative tactics to try to keep their case in front of Judge Albright and another client who asserted a patent that had been repeatedly rejected.
If you were looking for a way to “undermine public confidence in the impartiality of the judiciary,” it’d be hard to think of a better one.
