On July 25, 2022, Chief Judge Orlando L. Garcia of the Western District of Texas issued an "Order Assigning the Business of the Court as it Relates to Patent Cases." The Chief Judge ordered that all civil cases involving patents filed in the Waco Division, which were previously solely assigned to one judge, Judge Alan Albright, would now be randomly assigned to a group of 12 district judges throughout the Western District of Texas. Previously, by filing in the Waco Division, patent plaintiffs could ensure their case was assigned to Judge Albright, the sole judge resident in Waco.
Chief Judge Garcia's order potentially represents a sea change for patent litigation practice. According to Lex Machina data, Judge Albright has presided over more than double the amount of patent cases as any other judge since the beginning of 2021—handling 19 percent of all patent cases nationwide.
Background
In 2018, President Trump nominated Judge Albright for a district judgeship in the Western District of Texas. Since his appointment, Judge Albright's practices and rulings have been seen as pro-patentee by some. For example, as a procedural matter, Judge Albright showed a reluctance to invalidate patents at early stages under Section 101 and the U.S. Supreme Court's decision of Alice Corp. v. CLS Bank Int'l, 573 U.S. 208 (2014) (prohibiting the patenting of abstract ideas). While the jury trial record before Judge Albright shown a mix of victories between defendants and plaintiffs, his courtroom has seen large verdicts during his tenure, including a $2 billion plus verdict against Intel in 2021.
The concentration of patent cases in Waco, Texas before a single judge has not gone unnoticed. In November 2021, a bipartisan group of senators sent a letter to Chief Justice John Roberts to express their "concerns with forum shopping in patent litigation." The letter singled out a "consolidation of a large portion of patent litigation before a single district court judge in Texas"—i.e., Judge Albright. The letter requested that Chief Justice Roberts direct the Judicial Conference to study the issue, as well as "implement appropriate reforms" to address their concerns. The Chief Justice's 2021 Year-End Report on the Federal Judiciary addressed the senators' letter, stating that "The Committee on Court Administration and Case Management is reviewing this matter and will report back to the full Conference."
Chief Judge Garcia's July 25, 2022, order seems to address the senators' stated concerns and may preempt any further action by the Judicial Conference.
Takeaways
Chief Judge Garcia's order effectively ends the ability for patent plaintiffs to ensure assignment to Judge Albright when filing in the Waco Division of the Western District of Texas. The new order requires randomly assigning patent cases filed in the Waco Division of the Western District of Texas to any one of 12 district court judges in the district. Those judges do not have the same procedures and history of rulings that Judge Albright does and thus may not attract the same numbers of patent filings.
For companies facing patent litigation, the question becomes what venue do the cases shift to? Some have immediately suggested the cases returning to the Eastern District of Texas, a prior and still-current patent plaintiff hotspot. According to Lex Machina data, between 2014-2017 more than one fourth of all patent cases were heard by a single judge in the Eastern District, Judge Rodney Gilstrap. This view, however, may discount the Supreme Court's 2017 decision in TC Heartland LLC v. Kraft Foods Group Brands LLC., 137 S. Ct. 1514 (2017). There the Supreme Court limited proper venue in patent cases to where the defendant resides (i.e., is incorporated) or where "where the defendant has committed acts of infringement and has a regular and established place of business." 28 U.S.C. § 1400(b).
The Eastern District of Texas is not traditionally a home to large technology or life sciences companies. Many companies that are targets of patent suits are neither incorporated in Texas nor have "a regular and established place of business" in the district, which the Federal Circuit has instructed requires some form of brick-and-mortar facilities. Some companies have even intentionally removed all "brick and mortar" locations from the Eastern District to avoid venue there for patent cases. Accordingly, a return to higher filings in the Eastern District of Texas may be less likely than it would have been in 2017. By contrast, one of the reasons for the Western District's recent rise as a hotspot for patent cases is that the district includes Austin, where many technology companies now have offices and employees. Thus, venue was less of an obstacle to filing in the Western District of Texas for many companies.
One district that cases may flow to now is the District of Delaware. Long a patent-heavy district, many companies are incorporated in Delaware, making venue appropriate under TC Heartland. In the year after TC Heartland, patent cases in Delaware went up over 10 percent. While they did not continue to rise after that, the leveling off may be due to due to the simultaneous increase in cases in the Western District of Texas. Without Judge Albright available as a certain assignment, more plaintiffs may now flock to Delaware. Other jurisdictions may also become more important for patent plaintiffs. For example, cases filed at the International Trade Commission, where injunctive relief is the main remedy available, may increase. Districts in California—where many technology and life sciences companies are based—may also see a rise in patent cases. The Central District of California, for example, is the fourth most popular venue for patent cases since 2018 (after Delaware, and the Eastern and Western Districts of Texas), with 7 percent of all patent cases.
Overall, Chief Judge Garcia's order may reduce the number of cases filed in the Western Division of Texas. What remains to be seen is what venue will become the primary or preferred choice of patent plaintiffs. Given the Supreme Court's latest guidance on patent venue, districts to watch include Delaware, California, and the International Trade Commission. Other as yet unknown districts may also now take up the mantle of providing what are seen by some as pro-patentee procedures.
Wilson Sonsini Goodrich & Rosati routinely helps companies navigate patent litigation nationwide, including in top venues such as Delaware and the Western and Eastern Districts of Texas. For more information or advice concerning patent litigation, please contact Jordan R. Jaffe, Jim Yoon, or any other member of the patent litigation practice at Wilson Sonsini Goodrich & Rosati.
