During recent years, the Western District of Texas has been the busiest federal court for patent lawsuits in the US.[i] However, before July 25, 2022, plaintiffs who filed in Waco, Texas, could count on having their case given to Judge Alan D. Albright, the only active judge for the division. Judge Albright was appointed to the bench in 2018 after a career as a patent litigator. By adopting patent rules designed to move cases quickly to trial and encouraging patent holders to file in Waco, Judge Albright made Waco into a patent mecca. The new patent rules resulted in a concentration of patent cases in Judge Albright's court, leading to criticism from the Federal Circuit and the Senate’s intellectual property subcommittee.[ii]
To address this issue, then Chief U.S. District Judge Orlando Garcia issued an order on July 25, 2022. The order assigned the Business of the Court as it Relates to Patent Cases, mandating that all new patent cases filed in the Western District’s Waco Division be randomly assigned to 12 judges across the district —including to courts in San Antonio, Austin, and El Paso. However, the impact of this new order was not as predicted. According to a Bloomberg Law docket analysis, in the roughly five months since the July order, 308 patent suits were filed in the Western District of Texas; the number down about 20% as compared to the same period in 2021.[iii]
So why is Waco, or Judge Albright, the most popular target for patentees? A Duke law journal article by Jonas Anderson & Paul R Gugliuzza sets forth four reasons for this “judge shopping” phenomenon[iv]:
- Judge Albright adopts a fast-track case schedule, which is highly advantageous to patentees.[v]
- Judge Albright also adopts a venue transfer practice, that gives plaintiffs a high success rate in keeping their cases in the district.[vi]
- Judge Albright shows unwillingness to stay cases, including motions to stay regarding PTAB (Patent Trial and Appeal Board) proceedings, the main tool for defendants to address invalidity.[vii]
- Lastly, Judge Albright is inclined to not invalidate patents based on subject matter eligibility (35 U.S.C. 101), even regarding “do it on a computer” patents, of which the Supreme Court has significantly doubted their validity.[viii] [ix]
The article suggests several solutions[x], including the solution that was adopted by Judge Garcia, to randomize the patent case assignments within the Western District of Texas.
Then What Did the Order Accomplish?
After more than half a year from when the order was issued in July last year, we may ask the question: Did the order change anything? Is the number of patent infringement cases filed in the Western District of Texas declining? Well, not as much as one would have expected. First thing to notice is, at least as of December 2022, that the district is still the top venue for such patent lawsuits.[xi]
While the share of patent cases filed in the Western District of Texas has dropped off some since the July order, a procedural order relating to litigation financing transparency issued by Delaware’s chief judge appears to have proven even more momentous in terms of influencing the filing decisions of patent plaintiffs.[xii] Delaware was the second busiest patent venue over the five-month period in 2021 examined by Bloomberg Law. However, in the same five-month period in 2022, new Delaware lawsuits plummeted by 110, or 31.3%, accounting for 15.8% of new cases nationwide.[xiii]
Despite the rule change that divvied up filings that would have been assigned to Judge Albright, plaintiffs are still filing lawsuits in Waco. Part of this is due to the fact that at least two of the 10 judges who are taking a share of new Waco cases adopted rules for patent cases that are “very, very similar or the same” to rules Judge Albright issued.[xiv] Judge Albright has also made available his Magistrate Judge Derek T. Gilliland—a former patent litigator selected to help with the heavy patent docket in Waco—to judges across the district, taking some of the Waco volume.[xv]
This illustrates that sometimes, even with the best intentions, changes may not produce the predicted results. While the order has resulted in a drop in overall patent litigation in the district, it has not completely addressed the concentration of cases in Judge Albright's court. Furthermore, other factors outside of the Western District of Texas, such as the procedural order relating to litigation financing transparency issued by Delaware’s chief judge, may have a more significant impact on patent plaintiffs' filing decisions. Therefore, it is essential to regularly evaluate the effectiveness of any changes made to the case assignment process in Waco and be open to making further adjustments, as necessary, to ensure that patent litigation is distributed fairly and efficiently across the Western District of Texas.
[i] Jonas Anderson & Paul R Gugliuzza, Federal Judge Seeks Patent Cases, 71 Duke Law Journal 419 (2021).
[ii] New Patent Cases Filed in Waco Will Be Randomly Assigned Among Western District of Texas Courts and Divisions, Akin Gump Strauss Hauer & Feld LLP (July 22, 2028), https://www.akingump.com/en/experience/practices/intellectual-property/ip-newsflash/new-patent-cases-filed-in-waco-will-be-randomly-assigned-among-western-district-of-texas-courts-and-divisions.html.
[iii] Michael Shapiro, West Texas Still Tops Patent Venues, Even After Cases Randomized, Bloomberg Law (Dec. 27, 2022), http://bloomberglaw.com/bloomberglawnews/exp/eyJjdHh0IjoiSVBOVyIsImlkIjoiMDAwMDAxODQtZjIzYS1kNDk0LWExOGYtZmYzZmRjYmQwMDAxIiwic2lnIjoiU29IWDlkY08vZ2ZrQVpWMXNNMGxaTlVNZDEwPSIsInRpbWUiOiIxNjcyMTY5MDM3IiwidXVpZCI6Ilo0aUZYcGJSS2xpQzhPUzlMQmc2U2c9PTVocmR5b2laRFdoZCtVaHhVSmJlQlE9PSIsInYiOiIxIn0=?bwid=00000184-f23a-d494-a18f-ff3fdcbd0001&cti=LSCH&emc=bblnw_nl%3A18&et=NEWSLETTER&isAlert=false&item=body-link&qid=7400263®ion=text-section&source=newsletter&uc=1320017973&udvType=Alert&usertype=External.
[iv] Anderson, Supra note 1.
[v] Id. at 455.
[vi] Id. at 461.
[vii] Id. at 465.
[viii] Id. at 468.
[ix] Alice Corp. v. CLS Bank Int’l, 573 U.S. 208 (2014).
[x] Anderson, Supra note 1. at 476.
[xi] Shapiro, Supra note 3.