If there was ever any doubt that Judge Alan Albright’s courtroom in Waco, Texas was a favorable venue for patent trolls, we can now put that notion to rest. The proof is in the numbers.
For those who haven’t been following this story, over the last few years, Judge Albright has publicly encouraged potential patent infringement litigants to come to the Western District of Texas (WDTX). Albright promised expedited trials that would allow plaintiffs to circumvent inter partes reviewAn adversarial procedure created by the AIA for challenging patents. Intended to be similar to a court proceeding, the parties argue before an Administrative Patent Judge, not a patent examiner. The challenger must show a reasonable likelihood of successfully invalidating one claim before the PTAB will agree to grant a petition for review. (IPRIntellectual Property Rights. Usually associated with formal legal rights such as patent, trademark, and copyright. Intellectual property is a broader term that encompasses knowledge, information, and data considered proprietary whether or not it is formally protected.) at the U.S. Patent and Trademark Office, due to the Patent Office’s prior practice of denying review if there was parallel litigation in progress. Since Albright is the only judge in the Waco Division of WDTX, any plaintiff who filed there was guaranteed to have their case heard by him.
And the patent trolls came flocking. For a period of years, Albright oversaw 25% of all patent litigation in the United States. In 2021, patent trolls were responsible for 82% of WDTX filings.
July 2022 marked a turning point for Judge Albright’s famous (or infamous) venue, when Orlando Garcia, the Chief United States District Judge for the Western District of Texas, issued an order for patent cases to be randomly assigned among the 12 judges in WDTX. In December, the new Chief U.S. District Judge Alia Moses kept the change – assigning all cases filed in Waco to Albright except patent cases, which continue to be randomly assigned. This, in effect, put an end to patent trolls knowing for certain that if they came to WDTX, Albright would be in charge.
So, the question remains…did patent trolls just happen to all have legitimate standing in the Waco Division, or did they go there because they knew that the playing field was tilted in their favor?
Let’s take a look at the numbers.
Immediately following the July order there was a change in filing behavior, with new infringement cases dropping precipitously. As IAM’s Angela Morris pointed out, “during the week of the order, [Albright] received just three patent cases, which is a 73% decline compared to the previous week…There were no new patent cases in Albright’s court the following week and just one during the week of 7 August.” Meanwhile, during the week that the random-assignment order came out, caseloads spiked elsewhere with Delaware receiving 23 new patent cases, a 283% week-over-week increase.
Similarly, Bloomberg Law’s Samantha Handler noted a “proactive response by litigants” immediately following the July order. Relying on data from Unified Patents, the Bloomberg Law analysis noted a 19.3% year-over-year decline in new patent cases filed in Texas District Courts during the five weeks following the order compared to the same five weeks of 2021. Nationally, the same comparison reveals just a 7.9% decline. Handler also points out that the “drop is even sharper among the non-practicing entities known colloquially as ‘patent trolls.’”
Law360 also looked at the data, this time sourced from Lex Machina. They found that in the 30 days following the order there were only 45 patent cases filed in WDTX compared to the 80 case per month average over the previous six months.
Now, with a little more distance from the July order, there is more data to analyze. WDTX remains the top patent litigation venue in the country, but from July to December there was a 20% decrease in cases filed there compared to the same period in 2021.
The data all tells the same story.
The ultimate proof that Albright’s practices give plaintiffs a meaningful advantage is that as soon as random judicial assignment was instituted, patent litigants went elsewhere and many have stayed away. But, as Michael Shapiro at Bloomberg Law points out, there are reasons to expect WDTX to remain a popular venue, including that Albright – for the moment – is still getting an outsize share of new filings because they are factually related to his previous cases and that Albright has made his magistrate judge available to assist other judges in the Western District who are now being assigned more patent cases.
Litigants shouldn’t be picking where to file lawsuits because they think they’ll have the judge on their side. It is encouraging to see Judge Albright’s caseload drop in response to the random assignment order, but it is only further evidence that patent trolls and patent holders believed they were getting preferential treatment in WDTX.