Gray Reed & McGraw LLP was mulling whether to open an office in Waco, Texas — before the Supreme Court changed venue rules for patent cases and a longtime patent litigator became a federal judge there.
“That really pushed us over the hump, so to speak,” David Henry, who leads the Houston-based firm’s IP litigation practice group, said of the two events.
Gray Reed this month is opening a new office around the corner from the federal courthouse in Waco. The firm is one of several that are building an IP presence in the U.S. District Court for the Western District of Texas, which has seen a wave of patent lawsuits and quickly is becoming one of the country’s most popular venues for such cases.
Attorneys say much of the credit for the district’s rising patent profile goes to Judge Alan Albright, the former Bracewell LLP patent litigator who was confirmed to the Western District bench in 2018. Albright has streamlined discovery and taken other measures to make patent cases more efficient, intellectual property attorneys say. He didn’t immediately respond to requests for comment.
There were 270 patent lawsuits filed in the district in 2019, according to Bloomberg Law data. That’s more than the previous four years combined, and made the Western District of Texas the fourth-busiest U.S. judicial district for patent cases. Only the District of Delaware, the Central District of California, and the Eastern District of Texas fielded more new patent lawsuits last year.
Most of West Texas’ new patent suits are in the district’s Waco division, where Albright is the only judge. Henry said he was aware of only a handful of patent cases filed in Waco in his 30-plus-year career before Albright joined the bench. “And I was involved in a majority of them,” Henry said.
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Waco’s status as a patent litigation destination has its roots in the U.S. Supreme Court’s ruling in TC Heartland LLC v. Kraft Foods Group Brands LLC, which required plaintiffs to file lawsuits where defendants are incorporated or have a place of business.
The May 2017 ruling pushed patent cases out of certain districts, namely the rural Eastern District of Texas, which has a plaintiff-friendly reputation. West Texas doesn’t have the same location issues. Thousands of startups and technology companies are based in Austin, Texas, making the Western District a viable option for many patent suits.
Sixteen months after the high court handed down TC Heartland, Albright was sworn in, and attorneys said they immediately began preparing to litigate in Waco.
Intellectual property attorney Ted Baroody said he knew Waco was going to be a hot spot for patent litigation as soon as Albright took the bench. Baroody’s firm, Dallas-based IP boutique Carstens & Cahoon LLP, opened a Waco office inside his father-in-law’s electrical contracting business.
“When it made the news that a federal judge had been appointed in Waco who was a patent litigator, that’s all I needed to hear,” Baroody said. Opening a Waco outpost “would be a way for us to serve clients with cases in that court and have boots on the ground in a very cost-effective manner,” he said.
Haley Olson PC, a trial and transactional law firm, and MT2 Law Group, a civil litigation firm, teamed up to open a Waco office shortly after Albright’s appointment. Patterson + Sheridan LLP, an IP boutique, opened an office in Waco in 2019.
Bracewell, Albright’s former law firm, is “rebuilding IP litigation with people that are familiar with Judge Albright and his practices, at a firm that Judge Albright is familiar with,” Conor Civins, a patent attorney and partner at Bracewell, said.
Civins and Michael Chibib, another IP partner at Bracewell, left Pillsbury Winthrop Shaw Pittman LLP in 2019 to work in Bracewell’s office in Austin, which is also in the Western District. Both men had worked with Albright at Bracewell.
Albright’s experience litigating patent cases gives him a unique perspective and has led to rules and procedures that make Waco an appealing place to litigate, practitioners say.
The judge has set an expectation in court orders that cases will go to trial within about 18 months. The median time to trial in patent cases nationwide has been around two and-a-half years, according to a 2018 PricewaterhouseCoopers study.
Albright also has tried to make discovery more efficient, including largely staying discovery until after a claim construction hearing, and giving parties certainty with orders outlining the timing of certain milestones in a patent case.
The judge has also handled certain disputes over the phone, without the need for extensive briefing, attorneys say.
Albright sought guidance from patent attorneys who represent both plaintiffs and defendants to develop his courtroom processes, several of the attorneys said.
“I think folks having the ability to provide some input and him generating a set of rules and procedures that are reasonable and fair to both sides is something that folks also find attractive,” said John Guaragna, who leads DLA Piper’s intellectual property and technology practice in Texas and co-manages the firm’s Austin office.
Syed Fareed, an Austin partner at Baker Botts LLP who represents companies in a range of IP disputes and also has an Austin office, said Texas has been a large part of the firm’s growth plan and will continue to be moving forward.
“A lot of that growth will be devoted to the Western District of Texas and attracting the talent that we need to be able to handle the increased activity in this district,” Fareed said.