PublishedJune 7, 2021

Despite Patentee Protestations, It Isn’t Expertise That’s Bringing Plaintiffs to Waco

The meteoric rise of the Waco Division’s patent caseload is widely understood to be due to plaintiff-friendly policies on scheduling, transfer, and motions to dismiss.

But recently, some patentees have taken a different tack.  They’ve claimed that the reason cases are headed there is because litigants want to take advantage of Judge Albright’s experience as a patent litigator.

That claim just doesn’t hold up.

Who’s Filing?

Judge Albright absolutely has significant experience as a patent litigator—he handled patent cases as a magistrate and spent decades litigating them at a firm.

But if parties simply wished to have a judge with deep experience in patent law, we’d expect to see a wide variety of parties come to court in Waco—patent owners seeking infringement verdicts, defendants seeking declaratory judgments, operating companies and non-practicing entities (NPEs) alike.

That’s not what’s happening.

The vast majority—85%—of the cases attracted to the Waco Division are filed by non-practicing entities (NPEs).  This is disproportionately high—NPEs make up only 61% of all patent cases.  While 61% of all patent cases is a high number for companies that make nothing, the fact that the proportion of cases in the Waco Division is so much higher suggests that non-NPE companies don’t see the benefit of that experience.

The only patent holders that seem to see Judge Albright’s experience as beneficial are NPEs.  Operating companies aren’t headed to Waco.  And neither are another important category of cases.

Well, I Do(n’t) Declare in Waco

Declaratory judgment cases are cases where an alleged infringer goes to court first, asking the court to issue a declaration that they don’t infringe or that the patent they’re accused of infringing is invalid.  In recent years, declaratory judgment actions have comprised about 5% of all patent cases.  

But in the Waco Division, since Judge Albright was seated in 2018, I could only identify a total of only 15 declaratory judgment cases in front of Judge Albright.  And of those 15, many appear to be manufacturers who are indemnifying their customers who were sued in the Western District—not companies seeking out a Waco courtroom.

Given that the Waco Division has seen more than 1,000 patent cases during that timeframe, the proportion of declaratory judgment actions (~1.4%) filed in Waco is disproportionately low.  

This suggests that alleged infringers do not believe that Judge Albright’s patent expertise is equally helpful to both sides.

Problem Jurisdiction

If Judge Albright’s patent expertise were the factor attracting cases, we would expect to see an increase among all categories of patent case filers.  If, instead, the attraction to the Waco Division is a set of patent rules that tend to favor patent plaintiffs and are particularly attractive to patent plaintiffs who do not themselves innovate or manufacture, we would expect to see the exact kinds of shifts observed here—a disproportionately high number of NPE plaintiffs and a disproportionately low number of declaratory judgment actions.

As the former Director of the USPTO memorably noted, “when you have a perception problem, you have a real problem.” 

This isn’t just a perceived problem—it’s a real problem, one that needs solving.

Josh Landau

Patent Counsel, CCIA

Joshua Landau is the Patent Counsel at the Computer & Communications Industry Association (CCIA), where he represents and advises the association regarding patent issues.  Mr. Landau joined CCIA from WilmerHale in 2017, where he represented clients in patent litigation, counseling, and prosecution, including trials in both district courts and before the PTAB.

Prior to his time at WilmerHale, Mr. Landau was a Legal Fellow on Senator Al Franken’s Judiciary staff, focusing on privacy and technology issues.  Mr. Landau received his J.D. from Georgetown University Law Center and his B.S.E.E. from the University of Michigan.  Before law school, he spent several years as an automotive engineer, during which time he co-invented technology leading to U.S. Patent No. 6,934,140.

Follow @PatentJosh on Twitter.

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