In sharp contrast to the extreme fanfare that followed Chief Judge Orlando Garcia’s July 25, 2022, “Order Assigning the Business of the Court as it Relates to Patent Cases” randomly assigning all new patent cases filed in the Waco Division of the Western District of Texas, the patent bar has been relatively quiet regarding Garcia’s November 15, 2022, “Amended Order Assigning the Business of the Court” arguably negating his surprising July 25 order.
Background and Impact of the July 25 Order
Garcia sent shock waves through the patent litigation community in July when he issued an order assigning all new patent cases filed in the Waco Division to twelve Western District of Texas district judges. Practitioners widely attributed Garcia’s July order to concerns expressed by U.S. Senators Tillis and Leahy and U.S. Supreme Court Chief Justice Roberts about forum shopping amongst patent holders. Since Albright took the bench in 2018, patent cases filed in the Western District grew from one to two cases per year in 2016 and 2017 to 949 patent cases filed in 2021, with patent cases in the Western District accounting for 25% of all patent cases filed in the U.S. in 2021. Tillis, Leahy, and Roberts likely felt pressure from the technology sector and other big business due to perceptions that Judge Albright’s court is patentee friendly. But court statistics indicate that Albright’s court is neither pro-plaintiff or pro-defendant. Instead, Albright’s popularity likely stems from his deep knowledge and expertise in patent litigation and his efficient case management practices which help litigants resolve cases quicker than in other districts.
In response to Garcia’s July 25 order mandating random assignment of patent cases filed in the Western District, practitioners predicted that patent case filings in the district would come to a screeching halt. But, to the surprise of many, although filings in the district slowed significantly, litigants continued to file cases in the Western District.
Effect of the November 15 Order
Garcia’s November 15 amended order, which arguably negates his July 25 order, came just days before Garcia took senior status. The November 15 order assigned criminal and civil cases and administrative duties to 17 Western District Judges. These assignments included assigning a percentage of civil and criminal cases filed in particular divisions to particular judges. For example, Garcia assigned 100% of the civil docket and 100% of the criminal docket in the Del Rio Division to new Chief Judge Alia Moses. Most interesting to the patent litigation community is Garcia’s assignment of “[a]ll cases and proceedings in the Waco Division” to U.S. District Judge Alan D. Albright. The order further stated that it was “in lieu of prior similar orders of the Court on assignment of the business of the Court.” (emphasis added). Thus, Garcia’s latest order seemingly overrules his July 25 order “randomly” assigning patent cases to 12 different Western District judges unless the July 25 order is categorized as something other than a “prior similar order of the Court on assignment of the business of the Court.”
Case Assignments in the Western District
A look at the case assignments in Waco since the November order became effective does not shed much light on how the district will assign patent cases going forward. The order stated that it “shall become effective on December 1, 2022.” Since the December 1 effective date, 18 patent cases have been filed in the Waco Division of the Western District of Texas. Of those 18 cases, nine were related to cases filed before December 1 and were thus assigned according to the judges assigned to the prior-filed related cases. Seven of the 18 December cases were not related to prior-filed cases and were assigned to Judge Albright. And, a single set of two related cases were assigned to Judge Fred Biery of the San Antonio Division. If we group these cases according to relatedness, three sets of cases were assigned to Albright and one set of cases was assigned to Judge Biery.
Conclusion
Although the plain language of Garcia’s November 15 order seems to indicate that all patent cases filed in Waco will, once again, be assigned to Judge Albright, it is unclear whether that will actually happen. Patent practitioners and would-be patent litigants on both sides of the “v” will be monitoring case filings in the Waco Division in the coming days and weeks, likely hoping their case is assigned to a judge with Albright’s patent law expertise.
Karl Rupp of Sorey & Hoover contributed to this blog post.
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