By: Ben Suslavich
On July 25, 2022, the Chief Judge of the Western District of Texas, Orlando L. Garcia, signed an order assigning all new patent suits filed in the Waco Division to all of the remaining district judges in the Western District (with the exception of Judge Guaderrama in El Paso). The reason for this is purported to be “an effort to equitably distribute those cases.”
This order, however, will have some massive consequences for the nation’s patent docket. For inventors and patent owners, it essentially strips away one of the country’s most experienced and favorable patent litigation venues. However, defendants such as large tech companies like Google, Apple, and Samsung will almost certainly enjoy the opportunity to have cases transferred to judges who are perhaps more favorable. In addition, many firms with large IP practices such as Patterson and Sheridan, McDermott, Morrison and Foerster, and Kirkland and Ellis may experience a disruption as a result of this order. Many IP firms have either moved or expanded their Austin and Waco practices to capitalize on the Austin tech market’s growth and the growth of one of the largest patent dockets in the country.
Roughly 20% of the nation’s patent docket is concentrated in Waco, Texas. The Popularity of the Waco District Court is attributable to the presence of Judge Alan D. Albright. Since Judge Albright was confirmed to the Western District of Texas in 2018, the number of patent infringement complaints filed in the court surged, briefly putting an end to Delaware’s reign as the nation’s most popular patent litigation forum for patent owners.
Judge Albright’s popularity for plaintiffs is partially due to the “Rocket Docket,” which quickly brings cases to trial. Judge Albright is also attractive to plaintiffs since he typically refuses to stay patent cases pending Patent Trial and Appeal Board (“PTAB”) proceedings, such as Inter Partes Review (“IPR”). In addition, Albright’s court has some other advantages for plaintiffs; such as a strong preference for jury trials over summary judgment, and a reluctance to address §101 challenges before Markman hearings. Since Judge Albright is the only District Judge in Waco, it is guaranteed that a case filed in Waco will be assigned to Judge Albright.
While it is unclear what Chief Judge Garcia’s motivations are for reassigning all of Judge Albright’s cases, the decision has come on the heels of decisions by the U.S. Patent and Trademark Office (“USPTO”) and letters sent by Senators Thom Tillis (R-NC) and Senator Patrick Leahy (D-VT) to Chief Justice Roberts. It is reasonable to ask why two Senators are so interested in a district judge who is actually eager to litigate patent cases when most other federal judges abhor such disputes on their docket. Combining this interest with what some have described as “the Federal Circuit’s obsession” with Judge Albright makes the current situation even more peculiar.
To Senators Tillis and Leahy, the reason appears to stem from a desire to replace juries with PTAB Administrate Patent Judges and keep the focus of patent litigation through procedures such as IPR. IPR is an incredibly popular defense strategy with large corporate defendants since it is relatively cheap (typically costing under $700,000) and has patent claim “kill rates” of about 50%. This means that defendants are highly likely to be able to remove problematic patents without ever needing to go to court. However, Judge Albright’s scheduling orders undermine the IPR process since his cases typically are adjudicated before the PTAB, which suffers from a long backlog of cases and can even render a decision. As a result, PTAB applies what is known as the Fintiv factors to determine whether they should even bother reviewing the validity of a patent. Senator Tillis appears to urge the USPTO that “aggressively scheduled trial dates” such as Judge Albright’s scheduling orders should be disregarded. However, this is quite an exaggeration since, according to Docket Navigator, the average time to trial for patent cases before Judge Albright between 2019-2022 has been 729.8 days (2.01 years). In comparison, the International Trade Commission (“ITC”), which also handles patent infringement disputes involving complex technology, reaches resolutions in only 1.5 years on average.
Unlike how some portray Judge Albright’s court, the Waco Division appears to be a model to which Federal Courts can aspire to becoming. The implied notion that the court is somehow against the interests of the nation’s patent system is completely unjustified. While some attributes make litigation less favorable to defendants, litigating in Waco is not a windfall. According to Docket Navigator, of all patent cases which went to trial after January 1, 2019, in Judge Albright’s Court, patentee’s won only 11.11% of the time. This is statistically far lower than the national average for patent cases at 40.16%. Moreover, of the 1,415 patent cases before the court, 98.09% were settled. This is far higher than the average for patent cases in U.S. District Courts, which is 94.12%. Perhaps the question that Senators Tillis and Leahy should ask is how can the average District Court be more like Judge Albright’s court.
Ultimately, the decision by Chief Judge Garcia represents a strong desire to spread out the Waco docket and dilute it amongst multiple district court judges that do not have the same experience and resources that Judge Albright has. While Judge Albright’s court has been handling the large caseload for several years, many neighboring district judges will now need to contend with a large and complex patent docket.
Benjamin Suslavich is a third-year law student at Wake Forest University School of Law. He is a certified Chemical Engineer EIT and holds a Masters of Science in Metallurgical and Process Engineering as well as a Bachelors of Science in Materials Engineering from Montana Technological University.