The Wild West of Patent Venue:
In the world of patent litigation, venue - i.e. where a case is heard - has become a strangely contentious issue. Under the rules of venue, patent suits can be brought in any district where infringement has taken place and where the defendant has a regular and established place of business. This gives litigants some flexibility in terms of where to bring their patent suits - and has allowed for the practice of “judge shopping,” where litigants bring their cases in venues where they can expect to get a more favorable outcome. Single-judge court divisions are particularly conducive to judge shopping.
In these single-judge divisions, as long as you can justify venue in that division, patent litigants can effectively choose what judge will hear their case. This trend has led many to raise concerns about damaging the appearance of impartiality that is supposed to be inherent to the US judicial system. Many legal scholars fear that judge shopping could result in an unfair advantage for plaintiffs and hardship for defendants who have to appear before judges strategically chosen by plaintiffs. Despite there being no clear statistics yet to substantiate these worries, public perception of the judiciary has already been impacted, and the Judicial Conference has recently acted in hopes of counteracting this public reaction.
No judge exemplifies the judge shopping controversy better than the only judge sitting on the Waco Division of the United States District Court for the Western District of Texas: Judge Alan D Albright.
The Patent Case Lone Ranger:
Alan Albright, a born-again Texan since his college days at Trinity University in San Antonio, was appointed to his current role as part of President Trump’s January 2018 “Tenth Wave” of nominations, and was sworn in on September 18, 2018. Immediately upon his appointment, Judge Albright made a point of becoming the patent docket king, attracting as much patent litigation before his bench as possible. In the two years before his taking the Bench, WDTX heard 1-2 patent cases per year on average. After Judge Albright took the bench, however, WDTX saw 800-900 patent cases per year over a two-year period. By 2021, Judge Albright’s docket accounted for nearly 25% of all patent cases nationwide.
Judge Albright’s actions and effectiveness rapidly building out his outsized docket of Patent cases in Waco stoked the ire of political figures in Texas and beyond, including two US Senators in November 2021, the Chief US District Judge of WDTX in July 2022, and the Chief Justice of the US Supreme Court in September 2023. At its heart, this ire centers around how having one judge set a large proportion of the precedent in a space like patent litigation can cause an appearance of partiality and political influence that is antithetical to the goals of the US judiciary.
This issue grew to such prominence that the Federal judiciary decided that something needed to change - first locally in WDTX, and then nationally via the Judicial Conference.
The Law Comes to Texas?
On July 25, 2022, WDTX Chief Judge Orlando Garcia took a step to dethrone the patent docket king, changing the system for patent case assignment in WDTX to a district-wide random assignment system across all twelve judges in the district. However, this move did not have the full effect that Judge Garcia had intended, as Judge Albright still ended up seeing 40% of the new patent cases brought in WDTX in 2023 - a much larger proportion than the 8% that would be mathematically-implied by random assignment.
Then, in March 2024, the Judicial Conference entered the fold, issuing guidance intended to respond to patent case judge-shopping concerns. In its March 12th guidance, the Judicial Conference stated that it would be strengthening its policy on random civil case assignment, proposing a district-wide random selection process for all Article III courts.
Despite the initial hope surrounding this announcement, this guidance does little to settle the debate around judge shopping concerns. The guidance consists primarily of recommendations - leaving it up to the local district courts to decide whether and how to implement the proposed changes. Additionally, it is unclear that the new guidance even applies to patent cases, as the case assignment policy applies only to “civil actions seeking to bar or mandate statewide [or Federal] enforcement of a state [or Federal] law” - which most patent cases do not involve. Ultimately, many legal scholars believe that the new guidance is toothless, being merely suggestive, brief, and limited by 28 U.S.C. § 137(a) powers granted to individual courts to establish case assignment systems. In fact, specific to WDTX, the guidance recommends nothing more than what Chief Judge Garcia already did back in 2022.
What Specifically is the Problem with Judge Shopping?
Taking a step back after inspecting all of the moving parts in Judge Albright’s Texas-sized patent docket controversy, it is hard to pin down exactly what problem the likes of Chief Justice Roberts, the Judicial Conference, and Congress are trying to solve here.
The impetus behind the new Judicial Conference guidance was a strongly-worded letter from two members of Congress. In it, Senators Tillis and Leahy voiced their concerns about “forum shopping in patent litigation,” and their fears that forum shopping “create[s] an appearance of impropriety which damages the … reputation for the fair and equal administration of the law.” Despite the existing tools of the Erie doctrine, forum non conveniens protections, and writs of mandamus, the Senators alleged that more needs to be done to reduce the ability of litigants to judge-shop by filing in single-judge divisions, like Waco, and to curtail the power that judges in these single-judge divisions can wield.
The Judicial Conference responded to these concerns by affirming that it “strongly supports the random assignment of cases and the notion that all district judges remain generalists.” The Conference envisioned that its guidance regarding random case assignment would “promote the impartiality of proceedings and [bolster] the public confidence in the federal Judiciary.”
However, not everyone views judge shopping so negatively. Some even tout the merits of judge shopping - most notably, Judge Albright himself.
Judge Albright’s Views: Don’t Mess with Texas
In the eyes of judges such as Judge Albright, judge shopping can result in judicial-quality improvements, allowing particular courts and judges to build expertise through concentration within their dockets, resulting in greater predictability, efficiency, and competence.
Inspired by Malcolm Gladwell’s “Outliers”, Judge Albright espouses the merits of specialization in the District Court system. Albright extends Gladwell’s logic to District Court judges and their dockets, and claims that specialization adds to the quality of the Court system across three axes: competency, predictability, and efficiency. Regarding efficiency, Judge Albright touts a 2-year target timeline from filing to trial, and his bench’s record supports this argument, with further compelling arguments and outcomes that support his views on the tradeoffs between IPR and Court proceedings. Judge Albright has also argued for the benefits of neutrally-friendly processes, crafting his Standard Order Governing Procedures to address suggestions and complaints raised by the attorneys sitting before him - an effort that seeks to improve the predictability and efficiency of his court. Furthermore, Judge Albright emphasizes the benefits of having a concentrated patent docket, as this level of concentration in highly-technical areas such as patent litigation can result in more competent judges that can deal more effectively with complex matters like Alice decisions and Markman hearings.
If Judge Albright’s efforts were the only impacts of concentrated patent dockets on the Federal judiciary, judge shopping could indeed be an improvement to our Federal district court system. Unfortunately, the incentives that judge shopping introduce, however, advance a competing objective supporting a different kind of predictability: allowing plaintiffs to choose the judge who is most likely to give them the outcomes they want.
For defendants, if this is your main concern, then you can petition to have a case sent to a different venue. However, the party moving to transfer venue has to get past one formidable obstacle: the judge that the case is currently before. Even if a party meets their burden of demonstrating convenience,[1] the judge that the case is currently in front of can deny the defendant’s motion to change venue. In such cases, there is only one way to get that case moved: writs of mandamus. Historically an extraordinary writ granted only in extreme situations, writs of mandamus have risen to prominence due to the trend of judge shopping. Judge Albright has been the center of much of the controversy here, with his rulings being criticized multiple times in various mandamus petitions in over 16 cases in 2020 and 2021 alone.
On this front, the Federal Circuit has done its part to help combat judge shopping, granting an abnormally-high proportion of writs of mandamus from WDTX over the past few years. That being said, writs of mandamus are not a panacea for the judge shopping epidemic, as they do require movants to meet a very high standard[2] in order to obtain the relief that the writ provides.
Come and Take It: The Future of Anti-Judge Shopping Efforts
At the very top of the judicial system, Supreme Court justices from opposite ends of the ideological spectrum, ranging from Kagan to Gorsuch, have voiced concerns about the concentration of immense power in single-division judges. Despite the widespread outcry, barring the elimination of single-Article III judge divisions, the issue of divisional judge-shopping will remain alive and well for the foreseeable future. Beyond the world of patent litigation, divisional judge shopping in general has been highly controversial, impacting national policy issues on matters ranging from immigration, to election reform, to minority rights and beyond. As in patent suits, many of the most controversial judge shopping allegations have been largely concentrated in the Texas District Courts. On top of these difficulties at the district court level, appealing cases from Texas District Courts brings you to the 5th Circuit, where appellate judges tend to align with underlying Texas District Court decisions.
Overall, for patent litigators who make their bread and butter as defense counsel for patent suits, your main takeaway for the foreseeable future is as follows: if you happen to find yourself on the docket of courts like Judge Albright’s in WDTX or Judge Gilstrap’s in EDTX (which, given the statistics, you are very likely to be at some point), be prepared to do three things: 1) polish up on the dusty niche writ of mandamus, 2) prepare a Supreme Court strategy from the outset of your case, and 3) add Waco and Marshall, TX to your GPS.
[1] Smith v. Colonial Penn Ins. Co., 943 F. Supp. 782, 783 (S.D. Tex. 1996) (“The Court weighs the following factors to decide whether a transfer is warranted: availability and convenience of witnesses and parties, the location of counsel, the location of books and records, the cost of obtaining attendance of witnesses and other trial expenses, the place of the alleged wrong, the possibility of delay and prejudice if transfer is granted, and the plaintiff's choice of forum, which is generally entitled to great deference”).
[2] Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380 (2004) (writs of mandamus are a “drastic and extraordinary” remedy “reserved for really extraordinary causes.” As such, “only exceptional circumstances amounting to a judicial ‘usurpation of power,’ ” … or a “clear abuse of discretion,” … “will justify the invocation of this extraordinary remedy”) (internal citations omitted).