The U.S. District Court for the Western District of Texas has issued an order severely limiting the ability of plaintiffs to choose to have their cases heard by U.S. District Judge Alan Albright, who has presided over nearly 2,400 patent cases since his confirmation in 2018. This will send shock waves through the current patent litigation landscape. Both patent owners and frequent patent defendants need to be aware of this potentially far reaching change.

Over the past several years, Judge Albright has seen an exponential increase in the number of patent infringement complaints filed in his Waco, Texas court. Judge Albright’s reputation for setting aggressive case schedules, and denying early dispositive motions, as well as motions to stay or transfer, ostensibly created an environment that attracted patent plaintiffs.

Until now, case assignment rules in the Western District have allowed plaintiffs to choose Judge Albright (rather than the more typical practice elsewhere in the country where assignments are random). This was possible because plaintiffs in the Western District had the ability to select the division in which they file their case. When that division only has one district judge (as is the case with Judge Albright in the Waco division), the plaintiff effectively could choose their judge. This led to Judge Albright overseeing nearly a quarter of all new patent infringement cases.

On July 25, 2022, the chief judge of the Western District issued a standing order that we expect will severely curtail, if not end, this practice. The order—which applies only to patent infringement cases filed in the Waco Division—requires random assignment of patent infringement cases filed in the Waco Division to any one of a dozen different district judges throughout the Western District. This order will make it impossible for patent plaintiffs to guarantee, or even expect, assignment of their case to Judge Albright. Judges in Austin, El Paso, San Antonio, and other locations will now hear patent cases filed in the Waco Division. This will create a stark contrast to the current patent infringement environment, where, since Judge Albright’s appointment to the bench on September 10, 2018, he has become the busiest patent judge in the United States.

We anticipate the immediate impact of the decision will reduce the total number of patent cases filed while patent owners reformulate their jurisdictional strategies. We further anticipate that, in the longer term, more patent cases will be filed in the already-busy District of Delaware, where large numbers of potential defendants are subject to venue because of their Delaware incorporation.

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