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 NPE (Non-Practicing Entity) 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 Circuit 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 NPEs like 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.

Originally posted to Patent Progress and reposted with permission.

As the Iancu era at the U.S. Patent and Trademark Office comes to a close, one of the USPTO’s initiatives has focused on promoting diversity in patenting. The newly established National Council on Expanding American Innovation, and the associated USPTO request for comments on a national strategy for expanding innovation, focus on having under-represented groups more involved in creating patentable inventions.

That’s a laudable goal.  But we shouldn’t be aiming just to have more under-represented groups receive patents.  More patents doesn’t necessarily mean more innovation, it just means more patents.  Instead, we need to ensure that those groups are both provided the support to innovate and that their innovation is recognized.

To do that, we have to change how we talk about innovation.  In a recent article, Prof. Anjali Vats notes that the “stories that people tell about invention in the U.S. continue to focus on white men ? the Benjamin Franklins, Thomas Edisons and Elon Musks ? without affording women and people of color the same larger-than-life status.”  Often, those stories focus on lone individuals, not teams.  Those failures lead to barriers to innovation by under-represented groups whose contributions may not fit that model.

As one example, many?including USPTO Director Iancu?like to lionize Thomas Edison as the prototypical heroic inventor.  They point to him as a role model.  But Edison is a perfect example of the problems with the “heroic inventor” story.  Edison employed a large staff who did much of the work of his inventions?without those “muckers“, he’d have gotten much less done.  And of course, Edison was neither the inventor of electric light nor the inventor of a practical light bulb.  Alessandro Volta, the namesake of the word “voltage”, generated light from electricity 80 years before Edison did.  Humphrey Davy invented the electric arc light, which was in wide use in the 1800s, although it was impractical for home lighting.

And while Edison devised a carbon filament bulb, his bulbs only burned for a few days before they burnt out. It was Lewis Latimer who devised a process for making a filament sufficiently useful to allow electric lighting to become widespread. Latimer also wrote the first technical book regarding electric lighting. He even drafted the drawings for Alexander Graham Bell’s telephone patent?an application which beat Elisha Gray’s competing application to the patent office by only a few hours.

Latimer was African-American, the son of an enslaved person.  His story isn’t often mentioned alongside contemporaries like Edison or Bell when talking about American inventors, despite having been as or more responsible for the invention of electric light.  Similar “hidden figures” include Katherine Johnson, a NASA engineer, and other women who worked as “computers” for the Army, for astronomical calculations, and to support the Works Progress Administration.  

While these stories have been popularized, how many more unrecognized innovators are out there whose contributions were never recognized because they didn’t fit the model of “lone inventor creates idea and patents it”?  How many more innovations could we have if that wasn’t what was promoted as the primary model for innovation?

Instead of focusing on promoting patenting activity and lionizing heroic inventor stories, let’s try to promote innovation and recognize forms of innovation that don’t fit neatly into the patent framework.  Collaborative research, open-source and open-science models, and other such forms of innovation are at least as important as patents?let’s give them at least as much priority.

Originally posted to the Patent Progress blog