It isn’t every day that the literal landscape of patent litigation changes radically with the stroke of a pen. Monday, July 25, 2022 was such a day. That’s when Chief Judge Orlando H. Garcia of the U.S. District Court for the Western District of Texas issued an “Order Assigning the Business of the Court as it Relates to Patent Cases.” The Order mandated that “all civil cases involving patents” filed in the court’s Waco Division from that day forward “shall be randomly assigned” to a list of 12 district court judges. Random assignment of cases may seem commonplace, but the move is expected to effectively eliminate a massive concentration of patent cases before a single judge in Waco.
As many readers are likely aware, during the past several years, the Waco Division has become the most popular venue for patent infringement lawsuits in the country. Just before the Order issued, more than 800 patent cases—approximately 20% of those pending in any U.S. court—were before Judge Alan Albright, Waco’s only district judge.
A former patent litigator, Judge Albright actively encouraged plaintiffs to file their complaints in his court, and certain of his policies and practices kept them coming. He proved extremely reluctant to invalidate a patent at the pleadings stage for failure to claim patent-ineligible subject matter under 35 U.S.C. § 101, and publicly indicated he would not stay suits pending inter partes review proceedings (IPRs). Practitioners found him reluctant to grant motions to transfer venue to other courts.
The resulting concentration of patent suits in Waco drew critical attention from influential circles. U.S. Senators Patrick Leahy and Tom Tillis sent a letter to Chief Justice Roberts expressing concern, and the Chief Justice asked the Judicial Counsel to investigate venue issues in patent cases. Judge Garcia’s July 25 Order appears likely to address those concerns.
The Order will distribute newly filed Waco patent cases randomly to Judge Albright and 11 other judges who sit across Texas, in the Austin, San Antonio, El Paso, Midland/Odessa, Pecos and Del Rio Divisions. Only a handful of the judges—notably Judge Lee Yeakel and Judge Robert Pitman—have had a significant number of patent cases. By eliminating the previous virtual guarantee of assignment to Judge Albright, this change is expected to eliminate the Western District of Texas as a venue of choice for patent plaintiffs.
Where will the cases go now? As interpreted by the courts, the Patent Act permits patent infringement suits against U.S. entities only in a district where the entity is incorporated (where it “resides” in the words of the statute) or where it is alleged to have committed acts of infringement and has a “regular and established place of business.”
Infringement suits against non-U.S. entities may be filed in any district where the defendant is subject to personal jurisdiction. Under this framework, the most popular jurisdictions for patent suits have been the District of Delaware (where many corporations are incorporated), the Eastern District of Texas (another forum regarded by some as plaintiff-friendly), and the Northern and Central Districts of California (where many companies are headquartered or have places of business). Many believe that a large number of cases that would have been filed in the Western District of Texas will now be filed in those districts, while others will be distributed to other courts where venue is proper against particular defendants.
The reign of patent litigation concentrated in Waco is winding down. With this sea change, patent suit filers will be re-evaluating jurisdictions and this may mean venues considered by many to be less plaintiff-friendly in some cases—a change the frequent targets of patent suits may applaud.