PublishedOctober 30, 2023

Analysis Confirms that WDTX Judge Shopping Generated More Lawsuits, Imposed High Costs

Following his appointment to the Waco Division U.S. District Court for the Western District of Texas (WDTX) in 2018, Judge Alan Albright quickly garnered a reputation for trying to attract plaintiffs in patent lawsuits. A paper published this year by Santa Clara University School of Business professor Christian Helmers and Santa Clara University School of Law professor Brian Love confirmed that Judge Albright’s notoriety was well-founded. Helmers and Love found that “patent enforcers’ ability to select, with certainty, a judge widely regarded as a patentee-friendly increased the number of cases filed, especially by non-practicing entities.” 

According to the paper titled “Welcome to Waco! The Impact of Judge Shopping on Litigation,” there are two categories of patent lawsuits that account for the influx of litigation in WDTX – cases that were redirected to WDTX, but would have otherwise been filed elsewhere, and cases that were only filed because of plaintiffs’ ability to ‘judge shop’ for Judge Albright. In the latter category, these lawsuits never would have been initiated if Judge Albright was not on the bench. The researchers estimate that over a 33 month span, Judge Albright’s appointment led to 880 cases being redirected to WDTX that would have otherwise been filed elsewhere and an additional 460 cases filed that otherwise wouldn’t have been.

To put these numbers into context, the 880 cases that were redirected represent 10% of all patent cases in the US over that time period and the 460 induced cases represent another 5% of all patent cases over the 33 months. The paper notes that the total case influx in WDTX was greater than the total number of patent lawsuits filed in every European nation except for Germany.

The analysis also confirmed what many observers already suspected to be true – the rise in WDTX patent litigation was largely driven by NPEs. In particular, Helmers and Love found that Judge Albright’s appointment had a disproportionate effect on the filing decisions of small and medium-sized NPEs that purchase patents on the secondary market. NPEs were responsible for 85% of the increase in WDTX patent litigation that occurred after Judge Albright took the bench, including 70% of the cases that otherwise would not have been brought. 

Plaintiffs’ perception that WDTX under Judge Albright was a favorable venue is supported by the data. Helmers and Love find that: “An analysis of case outcomes additionally shows that cases assigned to Albright are on average more likely to settle without reaching a substantive decision as to the infringement or invalidity of any asserted patent… NPEs’ increased ability to achieve settlements in cases assigned to Judge Albright may, alone, help explain why so many NPEs elected to file suit in Waco, as NPEs commonly favor quick settlements to substantive rulings that might invalidate low quality patents or foreclose broad claim interpretations.”

The paper suggests that, at the very least, the additional NPE lawsuits Albright induced over the 33-month period generated at least $200 million in costs to the defendants in those cases. 

Helmers and Love are quick to say that there “was nothing unlawful” about Judge Albright’s actions, but we should all be concerned that a single judge has the ability to disproportionately impact the national landscape of patent litigation and, as a result, impose high costs on defendants. 

As noted in the paper, CCIA provided financial support for the authors’ research.

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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