As I pointed out in my previous post, the Senate Judiciary Committee has targeted WDTX venue practice as unseemly and inappropriate. In a two-pronged attack on the WDTX, Senator Tillis is now warning the PTAB to stop relying on unrealistic WDTX trial dates in its Fintiv analyses. This separate letter to Acting USPTO Director Hirshfeld is signed only by Senator Tillis as he supports Fintiv practices (Leahy does not).

In the letter, Senator Tillis points out that a far more predictable indicator of the ultimate trial date is average time to trial, not the “aggressive trial dates” set by judge Albright.

The USPTO letter (here), explains that:

I am concerned that the PTAB ‘s historical practice of crediting unrealistic trial schedules. This has not only produced outcomes that are untethered from the policy underpinnings of the Fintiv rule, but it has also created harmful incentives for forum shopping and inappropriate judicial behavior.

The negative consequences are most pronounced in the Waco Division of the U.S. District Court for the Western District of Texas. The sole judge in that division schedules very early trial dates for all patent cases assigned to him. Often, these dates prove to be not just unrealistic, but they [sic] impossible to fulfill as multiple conflicting trials are frequently scheduled to occur on the same date before the same judge in the same courtroom. However, because PTAB panels interpret Fintiv to require scheduled trial dates to be taken at face value, panels have regularly exercised discretion to deny institution of IPRs in deference to litigation pending before that district.

To be clear, I believe judicial conduct is partly to blame for this situation. . . .

[T]he Federal Circuit has refused to credit the division’s overly optimistic assumptions regarding the time-to-trial in cases, admonishing the division’s judge that a “proper analysis” considers “the actual average time to trial rather than aggressively scheduled trial dates. ” Moreover, the circuit court has also implicitly questioned whether even a more accurate “proper analysis” based on precise caseload counts and the accurate time-to-trial statistics produces a reliable assessment of relative court congestion, characterizing this analysis as mere “speculation. ” These unreliable and “aggressively scheduled trial dates” are the same ones that are relied on by PTAB panels in applying Fintiv. Despite the Federal Circuit’s conclusion that these dates are not appropriate indicators of actual time-to-trial and that it is not “proper” to rely on them for purposes of making transfer determinations . . .

Based on the facts currently available to me, it is difficult to imagine any plausible justification for the continued reliance on the demonstrably inaccurate trial dates set by the Waco Division.

(internal footnotes omitted, emphasis added)

Whether or not you agree with Fintiv practices (and I don’t), it is hard to argue that these trial dates are at all realistic. With upward of three Markman hearings a day, and multiple patent trials scheduled to accommodate the 900 case docket (not counting non-patent matters), these scheduled dates are just for show. I pointed out well over a year ago, initially scheduled trial suddenly begin to be rescheduled after a Fintiv denial is secured. In this way, average time to trial is a far more accurate measure for a Fintiv analysis. Given Senator Leahy’s all-out opposition to Fintiv, and Senator Tillis’s point that Fintiv doesn’t make sense were it is being abused an unrelaistically analyzed, perhaps there is room to compromise on this aspect of PTAB practice.

Going forward, petitioners with litigation in Waco should consider highlighting this letter, and the average time to trial in Waco.

A report from the PTAB on its scheduled date reliance practices is due to Senator Tillis by December 31st.