Top Patent Venues Are Two Steps Ahead of Judge-Shopping Guidance

When the Western District of Texas implemented a new randomization policy in 2022 in response to outcry over the massive number of patent cases filed in its Waco Division, there were expectations that filings there would drop off a cliff, but it remained among the most popular patent venues in the country.

The US Judicial Conference recently issued guidance purporting to discourage judge shopping in “all civil cases, including patent cases.” But several attorneys predicted that because of the Western District’s 2022 order and a case-division order for the even-busier Marshall Division in Texas’ Eastern District, the guidance will have a limited effect—or indeed no effect—on the two busiest patent venues in the country.

In part that’s because the two divisions, which in 2023 accounted for 29% of the nation’s patent cases, may technically already comply with the judiciary’s national guidelines, attorneys said—though that could depend on the definition of the word “random.”

The Judicial Conference’s approach is essentially, “attaboy WDTX,” Michael C. Smith, a Marshall patent lawyer and author of the Eastern District & Texas IP Law Blog, wrote in a LinkedIn post about the guidance. He pointed to a footnote in the Judicial Conference’s guidance noting a previous report on patents, which said the best path was allowing judges to distribute cases in a way that best serves their respective districts.

“While patent cases aren’t excluded from the Guidance—in fact some eager beaver apparently insisted that they be specifically included—they were the subject of a prior report that did not result in a policy or Guidance,” he wrote.

In the one-judge Marshall Division, Chief Judge Rodney Gilstrap was assigned 442 patent suits, the most nationally by more than a factor of two, according to a Bloomberg Law analysis of patent dockets. Gilstrap doesn’t get every patent case filed in Marshall, however. That was the district’s previous policy, but in December 2021, he signed an order dividing up civil suits in Marshall. Under that order and subsequent iterations, Gilstrap gets 90% of patent lawsuits, with the rest going to a judge based in Texarkana.

Smith said in a phone interview that the Eastern District’s approach, where every division splits up civil case assignments, even if “not an equal split,” seems to comply with the new guidance.

“Whether that meets the threshold of what the Judicial Conference wanted, I’m not sure,” said Jose Villarreal, an Austin-based patent litigator at Baker Botts. “But the guidance talks about letting the courts decide how they’re doing this randomization, so I suspect this might be OK. A lot of leeway is given to the courts.”

Paul Gugliuzza, a law professor who has written about patent judge shopping in Texas, said he’s isn’t so convinced. The guidance seeks to prevent instances where there is a “likelihood that a case will be assigned to a particular judge,” he said in an email.

“One reading is that there should be less than a 50% likelihood that any particular judge will be assigned the case—otherwise it would be more likely than not that the judge would get the case,” Gugliuzza wrote. “But, precise numbers aside, it seems to me that a situation in which nine out of every ten of cases are given to one judge, as is the case in Marshall, is not” avoiding likelihood any specific case would be assigned to Gilstrap.

Leading the Nation

The US District Court for the Eastern District of Texas, which includes the Marshall Division, drew 630 new patent suits in 2023—roughly one out of every five filed nationwide, according to Bloomberg Law’s docket analysis. That outpaced all other judicial districts in the country last year.

The US District Court for the Western District, where Judge Alan Albright had for a time supplanted Gilstrap as the nation’s busiest patent judge, drew 527 patent suits in 2023—423 of which were filed in the Waco Division, according to the analysis. That came after the district’s then-chief judge’s July 2022 order randomizing Waco patent suits, which, as tweaked, divvies them up evenly among 10 judges across the sprawling, 93,000-square-mile district.

Even after that change, Albright received 189 patent suits filed in Waco in 2023, according to the Bloomberg Law analysis, which was roughly 43% of the total for the division—significantly more than the even distribution laid out in the district’s randomization order. That’s due to a district practice of assigning cases to Albright that were related to previous patents suits the judge had handled. He also picked up an additional 13 patent suits filed in Austin, more than most judges in the country see in a typical year.

The next-busiest judicial districts were the District of Delaware, where 427 patent suits were filed, and the Northern District of Illinois.

Gilstrap and Albright each were assigned more patent suits individually than any other judicial districts received collectively in 2023.

Representatives for Gilstrap and Chief Judge Alia Moses of the Western District didn’t immediately respond to emails from Bloomberg Law seeking comment on how their districts will respond to the new guidance.

Midland-Odessa

One locale that might not be in compliance is the Western District’s Midland-Odessa Division, an oil rich section of the state where Judge W. David Counts is the only judge.

Following the Western District’s Waco randomization order, Albright offered his patent-specialist Magistrate Judge Derek Gilliland to help other judges with pre-trial portions of thereassigned patent cases. Counts adopted Albright’s local patent rules and began referring cases to Gilliland.

Counts has received 39 reassigned Waco patent cases since the randomization order. But starting in June 2023, a leading plaintiff-side patent law firm, Russ August & Kabat, began filing suits directly in Midland-Odessa. Then in November, prolific plaintiff-side patent litigator Bill Ramey also began filing suits directly in the one-judge division.

Ramey’s firm has filed 19 suits in Counts’ one-judge division in the past five months. By contrast, during Counts’ first four years on the bench starting in January 2018, it doesn’t appear that a single patent lawsuit was filed in Midland-Odessa, according to Bloomberg Law’s review of national patent filings.

“If Ramey’s filing in Odessa, that’s the only place in the Western District to file and get a predictable judge as far as your procedures,” said Smith, noting Counts’ tendency to have Gilliland handle pretrial matters in his patent cases.

The new Midland-Odessa filings show “that the judge shopping story in patent law is far from over—it’s just entering a new chapter,” Gugliuzza said.

‘Guidelines’

It’s unclear whether the 90-10 Marshall patent split or the one-judge Midland-Odessa division will get attention from the districts’ chief judges.

Several lawyers noted that the recent guidance seemed to acknowledge the statutory authority and discretion of the district courts to determine how to manage the issue of case assignments.

“The Judicial Conference intimated that this would be a policy change that would be implemented across the District Courts,” Jason Hoffman, a partner at BakerHostetler, said in an email. “But the actual memorandum that was sent to the District Courts—and with apologies to Pirates of the Caribbean—was ‘more what you’d call ‘guidelines’ than actual rules.’”