West Texas Still Tops Patent Venues, Even After Cases Randomized

The Western District of Texas remains the nation’s busiest federal court for patent lawsuits, despite a July rule change that divvied up filings that would’ve gone to Judge Alan D. Albright, and resulted in a drop in overall patent litigation in the district.

Before the July 25 case randomization order, plaintiffs who filed in Waco, Texas, could count on having their case given to Albright, the only active judge for the division. Albright was appointed to the bench in 2018 after a career as a patent litigator, and made Waco a patent mecca by adopting patent rules designed to move cases quickly to trial and encouraging patent holders to file there.

In the roughly five months since the July order, 308 patent suits were filed in the Western District of Texas, down about 20% over the same period in 2021, according to a Bloomberg Law docket analysis. In the same 21-week period the prior year, plaintiffs filed nearly one in every four patent lawsuits in the district, with almost all of them filed in Waco.

Even with the dip, plaintiffs still filed 20.1% of the nation’s patent suits in the Western District of Texas in that time period—over 60 cases more than the next busiest federal district, the District of Delaware.

“The thought was the number of cases would go down significantly,” said Jose Villarreal, an Austin-based partner at BakerBotts LLP, of the case randomization order from the district’s former Chief Judge Orlando Garcia. There was a marked drop-off in filings, both in the first month that the order went into effect and continuing throughout the year.

But, he said, patent plaintiffs have been willing to spin the wheel in the Western District. Part of this, according to Villarreal, is due to the fact that at least two of the 10 judges who are taking a share of new Waco cases—Judges David Counts in the Midland-Odessa Division and Kathleen Cardone in El Paso—adopted rules for patent cases that are “very, very similar or the same” to rules Albright issued.

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.

At a recent online conference hosted by British magazine Intellectual Asset Magazine, Albright said some judges in the district had told him they would use Gilliland “for all the pretrial stuff, and to the extent they decide to do that, they’ll probably be on the same track as my cases with the only real difference being if and when a case gets to trial, it might be a different judge.”

“One of the things as a plaintiff that’s really valuable is knowing what’s going to happen,” said Villarreal, “so if other judges adopt similar procedures and Judge Gilliland is running the case, you have that.”

Related Cases

Another factor is that Albright still gets an outsize share of new patent filings—well beyond the one in 11 that might be expected under Garcia’s order.

“What’s driving a lot of the filing in the last 5 months since the order was entered is there are a lot of cases filed before the order was entered that get assigned to Judge Albright because they’re factually related to older [patent] cases,” said Paul Gugliuzza, a professor at Temple University’s Beasley School of Law who has criticized the concentration of patent cases assigned to Albright since he joined the bench in 2018.

The glut of patent cases filed in Waco, and the fact that patent plaintiffs could essentially pick their judge there, drew criticism from several US senators. Supreme Court Chief Justice John Roberts ultimately promised to study the procedures that allowed for such judge-shopping, without singling out any particular judges.

According to the Bloomberg Law analysis, Albright was assigned 127 of the district’s 308 patent cases in the weeks following the July 25 order. A random distribution of 308 cases split 11 ways would be 28 cases.

In the same period for the prior year, he presided over 367 of the district’s 387 patent cases.

For patent defense lawyers who viewed Albright as wielding too much power over the nation’s patent cases, there’s been some disappointment at his continued influence.

“Some people were celebrating when the order came out,” said Jonathan Stroud, general counsel for Unified Patents LLC, a membership group that seeks to deter patent assertions from non-practicing entities, companies that don’t sell products covered by their patents.

“But a lifetime appointment is for life,” Stroud said, “and it didn’t take long for him to offer his magistrate and do other things like share his rules for patent cases.”

The Future

Whether Garcia’s order will remain, or be replaced, is also an open question, with Judge Alia Moses tapped to replace him as chief judge. For now, Moses has left Garcia’s order in place, tweaking it only to reduce the number of judges taking Waco patent cases from 12 to 11.

“I think that order in effect now is kind of a Band-Aid and probably not the last word on assigning cases in the Western District of Texas—particularly once Albright clears some of the cases on his docket,” Gugliuzza said.

He noted that the order seemed to have unintended consequences that could eventually lead to absurdities: What if a researcher at Baylor University or “Dr. Pepper wanted to sue in Waco,” but had their cases randomly assigned to El Paso, a 600-plus-mile drive, Gugliuzza asked.

Other lawyers said the order was a somewhat crude way to address the perceived venue-shopping issue. Villarreal called Garcia’s order a “blunt instrument.”

David Henry, a Waco-based patent attorney at Munck Wilson Mandala LLP, went so far as calling it “punitive.”

For her part, Moses gave no clues as to the patent assignment order’s future or whether she was crafting a replacement, when contacted by Bloomberg Law.

“I cannot comment on the business of the Court,” Moses said through a deputy.

Picking Up the Slack

While the share of patent cases filed in the Western District of Texas has dropped off some since Garcia’s order, a procedural order relating to litigation financing transparency issued by Delaware’s chief judge, Colm F. Connolly, appears to have proven even more momentous in terms of influencing the filing decisions of patent plaintiffs.

Delaware was the second busiest patent venue over the five-month period in 2021 examined by Bloomberg Law. For that period, 22% of all patent cases were filed in the First State, where many large American corporations are incorporated and where venue is generally easy to establish after the Supreme Court’s 2017 decision in the TC Heartland case.

But in the same 5-month period in 2022, in the wake of Connolly’s orders and his setting of several evidentiary hearings to see if certain plaintiffs were complying, new Delaware lawsuits plummeted by 110, or 31.3%, accounting for 15.8% of new cases nationwide.

That puts Delaware in a more distant second place among patent venues.

The Eastern District of Texas, which got a modest bump in new filings, crept up to a closer third with 11.7% of the total new patent filings. That district—which includes Marshall, Texas, where Judge Rodney Gilstrap also sees a high volume of patent cases—saw cases increase 7.7% year over year, even as new patent filings nationally fell 4%.

Several other districts also picked up some of the slack created by the filing decreases in Delaware and Western Texas.

The Central District of California, the nation’s fourth busiest patent venue, saw 10.7% year over year growth. The Northern District of Illinois added 22 cases, a 32.8% increase. In the District of Massachusetts, new cases more than quadrupled from 9 to 40.

The shakeup also may have robbed Albright of his title as undisputed king of the patent judges.

In the 21-week window analyzed by Bloomberg Law, Albright and Gilstrap were neck-and-neck in notching the most new patent assignments.

Albright was assigned 127 cases during that period and Gilstrap 129.