Alan Albright: “We’ve seen an enormous shift in the most important centres for IP”

JUVE Patent: Patent is about technology. As a judge you needed to be neutral. But as a lawyer, you are now free to speak. Do you have a favourite technology?

Alan Albright: Obviously, I did a lot of semiconductor cases before I went on the bench and I also enjoy medical technology as well. Leaving out pharma, which is very unique, those are the two areas that I enjoy the most.

What was your personal motivation to return to private practice?

Alan Albright: I had a very successful time on the bench, but over the past two years, I missed actually standing up and getting to argue in a court as opposed to listening and watching and ruling on arguments. In fact, last week I got to do my first hearing as a lawyer again, and I thought it was great fun to get up and advocate on behalf of my client and have the back and forth with the judge. I was surprised by how much I enjoyed it.

Now, after having eight years on the bench and having watched and presided over the number of trials I had, I will be a better counsellor. But of course, I miss the bench.

Will we also see you in the courtroom on a regular basis?

Alan Albright: My number one goal is to get back in. I would be thrilled if, before 2027 is over, I had three or four federal court trials. It would be a very spectacular year for me. What I’ve realised since I’ve been off the bench is that I am really looking forward to being able to talk to clients and give them advice.

“With the eight years training as a judge I will be able to add extra to the advocacy”

I think I’m in a very unique position. Up until the time I went on the bench, you’d get hired by company X, and think you’re giving them the best advice you can, but you’re giving them the advice just as an advocate. But with the eight years training I had as a judge I will be able to add an extra to the advocacy side because I have the ability to forecast and look down the road of what could be.

It came as a surprise to many that you had joined A&O Shearman. The patent team is still regarded in the US market more as a challenger than as a market-leading practice. Why this newly established transatlantic law firm of all places?

Alan Albright: That started through a relationship with a couple of A&O Shearman’s lawyers in Texas. As I grew to learn more about the firm and the extraordinary capabilities that the firm had for someone who might want to return and build an IP practice, I really felt like it was unparalleled. They have a very solid, successful IP practice already going. They have close to an unparalleled international presence. It’s amazing to go to a firm that has that kind of substantial coverage all over the globe. And then as I was going through the interview process, I saw the quality of the lawyers – especially in the most important European IP markets and also in Asia, where I think a substantial number of clients are.

Our understanding is that A&O Shearman needs to grow its patent litigation team in the US. Part of your job is to drive this development. What are the concrete plans for the future?

Alan Albright: Plans are already afoot. We are actively working to add new attorneys to the IP practice in the United States. I’m speaking at a lot of public events. I have been tasked to be one of the leaders in spreading the gospel of the A&O Sherman IP capabilities to current clients and future clients.

Looking at the situation from both sides of the Atlantic, what challenges is the patent team at A&O Shearman currently facing?

Alan Albright: The strengthening of the team enables us to do a better job of giving global advice and to service clients pretty much anywhere. At least for 2026 and in the immediate future, if you have an exceptional team of IP lawyers who are able to globally handle matters for international clients in Europe and the United States, then you’re in very good shape.

“We are seeking to grow further in Germany”

Jan Ebersohl: Growing in the key European markets is another goal. Even after the recent partner hire in Munich we are seeking to grow further in Germany. We are on the lookout for lateral hires that fit culturally and team-wise.

Growth strategy is one thing. Developing clients is another. Have you already figured out key clients you want to serve on both sides of the Atlantic or even globally?

Jan Ebersohl: We are set to do joint trips with integrated teams as early as this month, with lawyers from the US, the UK and Germany on the tech side, visiting clients and prospective clients. The effect of that is twofold: you get in front of the clients, and develop clients together. But you also get to know each other, which really is key.

Alan Albright: I don’t think I had been here two days before I had started being introduced to clients. I was very pleasantly surprised at the number of in-house counsel who reached out to me.

Developing a transatlantic patent team seems to be a trend. Winston Taylor and Hogan Lovells Cadwalader are further examples. What distinguishes A&O Shearman’s strategy from those competitors?

Jan Ebersohl: We have great patent litigators already in the US, like Tom Makin in our Boston office, now Alan Albright. In the short and medium term, we’re taking on this task of building the US team.

Alan Albright: There’s been an enormous amount of interest from other lawyers at every level in potentially coming here. I think the world is going to be shocked over the next couple of months at the growth of the IP group at A&O Shearman.

JUVE Patent interviewed various patent judges recently about the current global patent litigation system. What’s your personal view on the system?

Alan Albright: I don’t think I have any unique insight other than the explosion of AI in the world is changing everything. I started practicing patent litigation in 1999 until 2018 and then obviously I saw it from the bench side. The world is so dramatically different now.

“The explosion of AI in the world is changing everything”

With the importance of the courts in Europe, China and other countries, we’ve seen an enormous shift in terms of the most important centres on the planet for IP. That being said, I think if you were to pick 10 US patent trial lawyers and ask them where are the best places now to file patent cases in the United States, that question might grip them more than what’s happening in the other countries.

Part of that dramatic change was obviously the start of the Unified Patent Court. What is its impact on the global system and especially on the US patent system?

Alan Albright: I don’t see a major impact by the UPC on United States litigation. Given the structure in the United States, there are limitations on the ability of most plaintiffs to be able to get an injunction. Traditionally in the United States, where we’ve seen that dichotomy has been between filing in a district court and filing at the ITC. I think now the way companies in the United States would perceive it, is that they not only have the ITC as a potential method of getting injunctions, they now have the UPC. I’m uncertain about the size of the demand among plaintiffs to be able to get injunctions. So that’s why I’m uncertain about the impact.

Certainly, the UPC has had enormous impact for any companies where their business structure is to be able to find ways of getting some form of pressure, so they can get folks to enter into licensing agreements. But I would suggest that the vast majority of US patent cases that are filed are more focused on the ability to get damages for the inventor than they are to force a licence agreement.

Another fraught topic over the past twelve months was the disagreement between UK and UPC judges about jurisdiction in the InterDigital vs Amazon battle. Mr Albright, what is your view on this development?

Alan Albright: I followed what was happening in that case just because I thought it was interesting, but I don’t think it has any impact on any case that any current United States District judge has.

How would a US judge react to such a conflict if orders issued by a US court were involved?

Alan Albright: I’ve never seen that happen. I think the more common issues I saw, for example, in the courts were because of restrictions. In the United States, there are so few cases where the plan is to seek an injunction, I don’t see there being much of an opportunity where there would be that interplay between a United States judge and a European judge.

Arbitration in SEP disputes is another hot topic. Is arbitration the way to resolve FRAND disputes in the future?

Alan Albright: There are so few FRAND cases in the United States. As a judge handling SEP cases, I handled a fair number of them. But now that you’ve asked me that question, I could see a very compelling argument why that might be a good idea if you had quality arbitrators to do that.

“Arbitration might be a good way of setting the FRAND rate, but I don’t see that happening in the US”

But arbitration would only happen if there was an agreement between the parties to arbitrate. Hypothetically, I can see why a really skilled arbitrator might be a good way of setting early what the FRAND rate might be, but I don’t see that happening in the United States.

Lawyers in Europe are always interested in what’s going on in the US patent system. Which current or future developments of the US system are important to have on the radar?

Alan Albright: It’ll be fascinating to see where patent cases get filed in the United States now that I will no longer be on the bench. Typically, the major players in the United States have been Delaware, Northern District of California, and Eastern District of Texas. I think where will the next patent venue be, that’s the question that’s going to have to be answered. Will it continue to be primarily Eastern District and Delaware? When I’m talking to patent lawyers that’s the issue they discuss the most.

And are there any plans at the legislative level that might have an impact in the future?

Alan Albright: The willingness of the Patent Trial and Appeal Board of the USPTO to take cases is also something that patent holders and patent trollers take into consideration. The philosophy of whether or not to institute PTAB cases comes from the executive. We’ve seen changes between the patent office in the first Trump administration and then the Biden administration and now the second Trump administration. We’re very close to only having two years left of the current administration, and then we will have a different president, and so whatever is happening in the PTAB might change again.

The interview was conducted by Mathieu Klos.