ValueWalk, a website for financial investors, mentioned a potential scientific explanation for why trees don't grow to the sky: "[T]heir height is limited by their ability to pull water from the roots to the leaves." Gravity is a reality not only in biology, but also in patent litigation. Even in Waco, TX, gravity is a force.
The patent docket of the Western District of Texas has grown eight-fold in only about two years. As Lex Machina reports, 793 new patent infringement cases were assigned to Judge Alan D. Albright of the United States District Court for the Western District of Texas in the year 2020--19.5% of all U.S. patent cases filed that year, and more than three times as many as to Judge J. Rodney Gilstrap in the Eastern District of Texas. For example, eight patent complaints were filed yesterday with Judge Albright's court, versus 18 in all other (roughly 100) federal judiciary districts combined.
A local newspaper article quotes Judge Albright as saying that "[t]here is nothing [he] enjoy[s] more than working on patent cases" (he was a patent litigator before being appointed to the bench) because "the lawyers are exceptional and the issues before me are always intellectually challenging." And he feels "unbelievably lucky" about this institutionalized excess.
The recent record patent damages verdict in VLSI v. Intel ($2.175 billion) may attract even more patent holders to the Western District. Whether it's Caltech suing Microsoft or a newly-founded patent assertion entity claiming Samsung infringes its LED patents, they all contribute to the Western District's "market leadership" because they seek windfall profits from Judge Albright's exceedingly patentee-friendly rules and decisions.
But is this case load really a good thing for the court and for the region?
It can't go on like that. With just half as many new filings, Judge Albright would still be the undisputed number one U.S. trial judge in terms of the number of patent cases on his docket. But what's happening at the moment is a frenzy to put it mildly, or simply an insanity. In a short while, Judge Albright's reputation may be ruined, the local economy seriously harmed, and ultimately that won't even be positive for the W.D. Tex. patent docket.
Even if Judge Albright tried to be a bit more balanced, the fact that many major technology companies have a presence in his district would ensure a steady stream of patent filings. However, the current explosion is going to backfire in multiple ways:
If the Federal Circuit receives an appeal of a billion-dollar verdict from that district pretty much every month, the appellate judges won't be impressed. Much less overwhelmed. Instead, they'll stop taking that lower court seriously, and they'll overrule Judge Albright time and time again, occasionally with scathing remarks on what they believe he got wrong. It would take time, but after a certain number of reversals, that would even discourage plaintiffs from suing there.
The judiciary is independent, but some of the technology companies with a significant presence in the Austin area may decide to leave the region only because their executives decide those wacko verdicts are far above the ordinary cost of doing business. Once a major company announces such a decision, killing thousands of jobs in the region, local media may take a very critical perspective on Judge Albright's passion for patent litigation.
Many patent cases are settled ahead of trial, but still, some must be tried. There comes a point at which Judge Albright won't be able to guarantee the short time to trial that helped make his court so popular. And once he has to push back trial dates, the USPTO's Patent Trial and Appeal Board will accept more petitions challenging W.D. Tex patents-in-suit as opposed to denying them on a discretionary basis under NHK Fintiv.
§ 1400(b) isn't the only requirement for keeping a patent case in the district in which it was filed. There were at least two high-profile Federal Circuit decisions last year--one involving Apple and another Adobe--in which Judge Albright was held to have abused his discretion by denying transfers of cases out of his district to more convenient fora. In one case, the appeals court basically added insult to injury by deciding that the work performed by Judge Albright (such as claim construction, which is normally considered a key milestone) didn't count: the judge had simply given "undue priority" to the proceedings on the merits over Apple's motion to send the case to California.
It is obviously not an official criterion for an appeals court in the venue transfer context whether the lower court reasonably manages and decides its patent cases. But the Federal Circuit judges are very much concerned with the quality of the U.S. patent judiciary. At some point they won't merely give Judge Albright a slap on the wrist, but some of them might be sympathetic to defendants moving for a venue transfer.
Judge Albright has gone too far. It's time for the pendulum to swing in the other direction. Otherwise this is going to be nothing short of a disaster. I'll pay close attention to new filings and decisions, and major trials, in that district.
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