By Andrew Karpan

Law360 (February 4, 2021, 6:34 PM EST ) The Western District of Texas' top judge has put federal jury trials in the district on hold until April, citing the roughly 2.3 million cases of COVID-19 in the state, but left room for the busiest patent judge in the U.S. to make his own determination, as "not every division within the district is similarly situated."

On Tuesday, U.S. District Chief Judge Orlando Garcia issued the latest extension of his orders from last year continuing all civil and criminal jury trials scheduled in the district through March 31. Pointing to data from the Centers for Disease Control and Prevention, Judge Garcia wrote that "the best interests of the public are served by these continuances."

However, as in previous orders, Judge Garcia left the door open for Texas federal judges to resume trials in their divisions.

"The Western District of Texas is geographically large and encompasses approximately 93,000 square miles and 68 counties with many counties far more populous than others," the order noted. 

Judges in the Western District were still free to investigate the "facts and circumstances unique to the division" and decide accordingly, Judge Garcia wrote.

"If judges in a specific division determine jury trials can be safely conducted, the most senior district judge within the relevant division may enter an order making those findings and resuming jury trials for the division despite this order," Judge Garcia said.

The order may do little to deter U.S. District Judge Alan Albright, the sole federal district judge in the district's Waco division, which handles cases from 13 counties in the state. A former partner at Bracewell LLP who was appointed to the bench by former President Donald Trump in 2018, Judge Albright's court has quickly become the busiest patent court in the country.

Amid a pandemic that in Waco's McLennan County, Texas, alone has killed 372 people as of Thursday — according to numbers from the Waco-McLennan County Public Health District — Judge Albright has remained eager to resume jury trials in his courthouse, which is among the few that remain open in the state.

In November, U.S. District Judge Rodney Gilstrap in the Eastern District of Texas, another busy courtroom for patent litigation, had postponed all jury trials, following a COVID-19 outbreak in U.S. District Judge Amos L. Mazzant III's Sherman, Texas, courthouse. 

In fact, Judge Albright held his first patent jury trial in October, after expressing "surprise" at persistent safety concerns from Roku that had pushed the trial date from taking place that summer. The jury later cleared Roku of more than $41 million in alleged damages.

Judge Albright has another prospectively big ticket jury trial scheduled for Feb. 16, a fight between Intel and patent holding company VLSI Technology LLC, in which the tech giant is accused of infringing VLSI's data process patents to the tune of billions of dollars. On Thursday, Judge Albright issued an order scheduling two more jury trials, for April 12 and June 7, in two separate infringement cases between the companies. 

In December, Judge Albright shot down Intel's efforts to delay the earliest of those trials, in part, by assuring the company that his wife — a nurse at the ICU of Waco's Ascension Providence hospital — had informed him that not all the occupied hospital beds were even being used by patients with COVID-19. 

The Federal Circuit rejected Intel's efforts to remove that case from his Waco courtroom last month.

Judge Albright's office did not respond to a request for comment.

--Additional reporting by Ryan Davis, Katie Buehler and Daniel Siegal. Editing by Nicole Bleier.

Correction: A prior version of the story incorrectly described a scheduling order from Judge Albright. The error has been corrected.

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