Judge Albright and Transfers of Patent Cases

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Judge Alan Albright, one of the most active patent jurists, recently amended his standing orders to clarify inter-district transfers and venue discovery, adding predictability for parties that litigate in the Western District of Texas.

Background on Patent Litigation in Waco, Texas

Judge Alan Albright, based in Waco in the Western District of Texas, maintains one of the busiest patent dockets in the United States. In 2020, he saw nearly 800 patent cases—approximately 20 percent of all newly filed patent cases in the country.1

Judge Albright and Transfers of Patent Cases

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Commentators believe that patent assertion entities are attracted to Judge Albright’s court because of his detailed local patent rules.2 One example is that he conducts claim construction ("Markman") hearings early in the case schedule, which can help parties to assess the merits of their claims early in a suit.3 Recently, Judge Albright amended his standing orders to clarify the procedural requirements for motions to transfer out of Waco.4

The New Standing Orders

Judge Albright's amendments come on the heels of a flurry of activity at the Court of Appeals for the Federal Circuit.5

Judge Albright now requires that parties looking to transfer must file a status report that says whether the transfer motion is fully briefed and ready for a decision.6 The parties must file this status report at least six weeks before their Markman hearing date.7 If there is a pending transfer motion, the court will either: (1) Resolve the motion before the Markman hearing, or (2) Postpone the Markman hearing until after resolution of the transfer motion.8

Further, if a party waits to within eight weeks of their Markman date to file a transfer motion, they can only file the motion after showing a reason for the delay and with the court’s permission.9

Judge Albright’s amended order also establishes limits on venue-related discovery.10 His order limits parties to five interrogatories, ten requests for production and ten hours of deposition testimony. It further establishes a limit of 20 days to respond to discovery requests.11 If the parties need to extend these limits and cannot compromise, then the requesting party must contact the court for a telephonic hearing.12 Parties must also complete venue-related discovery within three months of the transfer motion’s filing date.13 Moreover, the party opposing transfer must file a response two weeks after discovery closes, and the requesting party then has two weeks to file a reply.14

The New Standing Orders Facilitate Clarification

Ultimately, Judge Albright’s new standing orders benefit litigants by clarifying motions to transfer. As such, these new rules complement a patent-focused district and should be part of a careful consideration of any patent suit in this court.

1 Data derived from LEX MACHINA, https://law.lexmachina.com/ (last visited, Jun. 23, 2021).
2 Michelle Casady, Waco’s New Judge Primes District For Patent Growth, LAW360 (Feb. 12, 2019).
3 Dani Kass, Judge Albright Now Oversees 20% of New US Patent Cases, LAW360 (Mar. 10, 2021),
4 Standing Orders, US DISTRICT COURT (last visited Jul 14, 2021).
5 Specifically, in 2020, the Federal Circuit granted a handful of writs of mandamus because Judge Albright delayed issuing decisions on transfer motions. See, e.g., In re Adobe Inc., 823 F. App’x. 929, 931 (Fed. Cir. 2020); In re Apple Inc., 979 F.3d 1332, 1346 (Fed. Cir. 2020).
6 Judge Alan D. Albright, Amended Standing Order Regarding Motion For Inter-District Transfer, (Jun. 8, 2021).
7 Id.
8 Id.
9 Id.
10 Judge Alan D. Albright, Amended Standing Order Regarding Venue and Jurisdictional Discovery Limits For Patent Cases, (Jun. 8, 2021),
11 Id.
12 Id.
13 Id.
14 Id.

Tiffany Huynh (Summer Associate, White & Case, Silicon Valley) co-authored this publication.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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