Robert A. Van Nest

Prominent tech litigator and name partner Robert A. Van Nest of Keker, Van Nest & Peters LLP gets the call when tough trials loom for clients like Google LLC, Qualcomm Inc., Netflix, Inc. and Facebook, Inc.

"The cases we're doing, if they get as far as trial, you know they're hard-fought matters," he said.

In mid-August, he was prepping for an upcoming patent infringement defense for Facebook at a trial in Austin, Texas. The case involved allegations that the Facebook Live and Instagram Live video streaming features infringe on the plaintiff's patents and technology. Voxer Inc. v. Facebook, Inc., 6:20-cv-00011 (W.D. Tex., filed Jan. 17, 2020).

"This plaintiff is a failed company with a walkie-talkie type app that they're basing infringement claims on," Van Nest said.

Van Nest, like most patent litigators, is no stranger to Texas' Western District--especially to Waco, where U.S. District Judge Alan D. Albright, the sole judge there, receives 23% of all patent cases filed in the U.S. The venue is thought to be friendly to plaintiffs, and Albright's practice of retaining all the cases filed there has led to forum-shopping concerns and appeals for venue changes.

In January, for example, Albright presided over a jury trial in which Van Nest defended Google against claims that its Nest thermostat infringed plaintiff's patents -- after rejecting Google's motion to transfer it to the Northern District of California, where both the plaintiff and Google are based. EcoFactor Inc. v. Google LLC, 6:20-cv-00075 (W.D. Tex., filed Jan. 1, 2020).

Van Nest eliminated two patents from the case prior to trial and obtained a jury verdict of non-infringement on another. The jury found that one patent infringed, but Van Nest was able to limit the damages and eliminate running royalties projected to be in the nine figures.

On July 25, the Western District of Texas' chief judge ordered that cases filed in Albright's Waco court will be randomly assigned among the courts in the district.

"He said that new filings in Waco will now be distributed throughout the district," Van Nest said. "The biggest change for me is that I'll be in Waco less frequently, while cases filed in Austin will remain in Austin."

One advantage, Van Nest said, is that the Austin jury pool is more tech-savvy, due to the prevalence of technology companies there.

Meanwhile, Van Nest is asking U.S. District Judge Jacqueline Scott Corley of San Francisco to reject a new version of a so-far failed antitrust class action against Qualcomm, contending it contains claims rejected in an appellate opinion that vacated a class certification order. In re: Qualcomm Antitrust Litigation, 3:17- md-02773 (N.D. Cal., filed April 6, 2017).

"It's an interesting case because it was one of the largest classes ever certified," Van Nest said.