Judge Albright’s hold on patent litigation may be loosening, thanks to an order issued by the Western District of Texas.
On July 25, 2022, Western District of Texas Chief Judge Garcia ordered that all patent cases filed in the Waco division on or after July 25 shall be randomly assigned to one of twelve district judges across the Western District of Texas, including judges in the San Antonio, Del Rio, Austin, El Paso, Midland-Odessa and Pecos divisions. The Western District of Texas encompasses a large area spanning from El Paso in the west to Waco in the east.
Chief Judge Garcia’s action is likely taken in response to negative comments by the United States Senate Judiciary Committee and the rulings of the Federal Circuit.
In November 2021, the United States Senate Judiciary Committee wrote to Chief Justice John Roberts expressing its concerns with forum shopping in patent litigation. Specifically, the Committee noted that nearly 25% of all patent litigation in the entire United States was pending before just one U.S. District Court Judge – Judge Albright of the U.S. District Court of the Western District of Texas, Waco division. The Committee knew this was no accident and cited Judge Albright’s open solicitation of patent cases. This trend has continued in 2022, with approximately 25% of all patent cases filed in the Western District of Texas.
The Federal Circuit has intervened on Judge Albright’s control over patent cases, granting mandamus directing Judge Albright to transfer cases out of the Western District of Texas. See, e.g., In re Atlassian Corp. PLC, Case No. 2021-177, 2021 WL 5292268 (Fed. Cir. Nov. 15, 2021).
Chief Judge Garcia’s order theoretically means Judge Albright’s patent case load will substantially decrease and cut into his patent litigation dominance. Plaintiffs unable to guarantee Judge Albright through forum shopping may file their patent case in another district.
It is significant to note that the order only applies to new cases filed after July 25, 2022. Defendants in existing cases will not find relief in this order.
The growth of the Waco division as a hub for patent cases has been closely watched and commented upon. Thompson Coburn’s previous comments can be found here.
 According to Westlaw Litigation Analytics, 1,940 patent cases have been filed in U.S. District Courts in the first half of 2022. Of those, 409 have been assigned to Judge Albright ( ~ 21%), and 500 have been filed in the Western District of Texas ( ~ 25.7%).
Robyn Ast-Gmoser is a partner in Thompson Coburn’s Intellectual Property practice and an experienced patent litigator who represents clients in patent and trademark matters in federal courts. Brendan Bement is an associate Thompson Coburn’s Intellectual Property practice.
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