Tuesday, July 26, 2022

Chief Judge of Western District of Texas does Chief Justice Roberts's bidding: patentees now have less than 10% chance of given case being assigned to Judge Albright

Judge Alan Albright managed to attract roughly a quarter of all U.S. patent infringement complaints to the Waco division of the United States District Court for the Western District of Texas. Without a doubt, plaintiffs went there for the combination of the following two factors:

  • Many large technology companies have operations in that district that weigh against a transfer to another venue under TC Heartland.

  • By filing a case with the Waco division, plaintiffs knew for certain that a case was going to be assigned Judge Albright, a former patent litigator--even though he sometimes held trials in nearby Austin.

"Judge-shopping" is what its critics called it. Its days were numbered when the Judicial Conference under Chief Justice John Roberts called for change. Yesterday, Chief U.S. District Judge Orlando Garcia entered a standing order that says this:

Upon consideration of the volume of new patent cases assigned to the Waco Division and in an effort to equitably distribute those cases, it is hereby ORDERED that, in accordance with 28 U.S.C. § 137, all civil cases involving patents [...], filed in the Waco Division on or after July 25, 2022, shall be randomly assigned to the following district judges of this Court until further order of the Court.

There are 12 judges on the list: the Chief District Judge himself, Judge Albright, and ten other judges.

The first question I asked myself when I saw that orders is: why only Waco? Wouldn't it be more principled to say that all patent cases filed in that district would be randomly assigned?

The problem of a disproportionate number of cases being assigned to a single judge was specific to only the Waco division. But if the cases filed in Waco are randomly distributed, and assuming that the number of cases filed with the other divisions combined is going to be small, yet greater than zero, it actually means that Judge Albright will get fewer patent cases assigned to him than his colleagues. That is discriminatory.

With a pool of twelve judges, it's practically impossible that patent holders will be equally pleased with the results they are going to achieve in that district as they have been in recent years. Maybe a couple of judges will have a similar mindset as Judge Albright, and will preside over patent cases with comparable verve, but not all eleven of them.

Wouldn't it have been sufficient to identify a pool of, say, three or four judges with a strong interest in patent law? In that case, there would be a greater degree of predictability.

It is a key characteristic of the U.S. judiciary that all federal district judges are generalists. They may hear a criminal case one day and a patent case the next day. There are "hotspots" where each judge gets at least a few patent cases assigned per year, and Judge Rodney S. Gilstrap of the United States District Court of the Eastern District probably has a docket that overwhelmingly consists of patent cases. (And he's the Chief Judge there.)

The U.S. judiciary is an outlier on the global stage, where the other major jurisdictions do have specialized court divisions that focus on patent law. In Dusseldorf and Munich, there are three patent-specialized divisions each, and two in Mannheim. In Barcelona, there are three trade judges who hear patent cases. There are patent-specialized judges in the UK, the Netherlands, France, China, Japan, and some other places. At the European level, the Unified Patent Court (UPC) will go into operation next year.

Patent law is a complex field, it has some unique characteristics, and it helps when judges acquire a feel for technical issues. Those are only some of the strong arguments in favor of specialization. The USITC is a great example.

Some cases that would have been filed in the Western District of Texas before yesterday are now going to be brought in other U.S. districts, such as the Eastern District of Texas or the Eastern District of Virginia ("rocket docket"). But some patent holders may conclude that the best strategy is to seek injunctions in Europe (of course, provided that they hold European patents).

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