Court order could diminish Waco judge’s hold on patent cases

District Judge Alan Albright’s patent docket could be reduced by 90 percent
Alan Albright (Courtesy File Photo)
Alan Albright (Courtesy File Photo)(KWTX)
Published: Jul. 26, 2022 at 1:21 PM CDT
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WACO, Texas (KWTX) - While U.S. District Judge Alan Albright has quickly established his court as the nation’s leading and fastest-growing patent law docket, a recent order requires new patent cases filed in Waco to be randomly assigned to other judges across the state, which could reduce Albright’s patent docket by an estimated 90 percent.

In a brief order issued Monday, Chief Judge Orlando L. Garcia of the Western District of Texas ordered patent lawsuits filed after July 25 to be assigned to 12 judges in the Western District, including Albright, to “equitably distribute” the suits.

The order comes as Albright continues to fend off increasing criticism, most notably from two U.S. senators and others who alleged last year that Albright is misusing his power to turn his federal courtroom into a hotbed of patent litigation.

Albright, who took the federal court bench in September 2018, declined comment Tuesday on Garcia’s order. Garcia did not return phone messages Tuesday.

Albright openly encourages litigants in patent and intellectual property cases to file in his court, promising an experienced judge who specialized in patent litigation for two decades as an attorney and a welcoming, streamlined environment in which to try cases.

At least a dozen law firms specializing in patent litigation have opened offices in Waco since Albright has been on the Waco bench, and the Judicial Conference of the United States authorized a second magistrate judge for the Waco division after Albright remade the court into the nation’s leading patent litigation destination.

Derek Gilliland was appointed federal magistrate in April to help assist with the burgeoning patent caseload. The new order clearly will affect Gilliland’s day-to-day schedule, the bottom line of those firms who moved offices to Waco and the local economy in general, but it is too early to determine to what extent.

Derek Gilliland
Derek Gilliland(Tommy Witherspoon for KWTX)

David Henry, who has taught patent law and litigation at the Baylor University Law School for 28 years, said Garcia’s order will have a significant effect on the Waco court’s caseload.

“It is common knowledge in the legal world these days that Waco has the largest patent caseload in America,” Henry said. “I believe that this order may have a significant impact, not just on the Waco caseload, but on patent case filings in the Western District of Texas. Not knowing that they will definitely have the features for patent cases that the Waco court provides, I think that plaintiffs in patent cases are likely to at least consider other courts that, like the Eastern District of Texas, the District of Delaware and the Northern District of Virginia, have similarly equipped themselves for patent cases.”

Albright’s court supplanted those other venues as the nation’s busiest patent law court, with at least 25 % of the nation’s patent cases being filed in Waco.

Those whopping numbers attracted the dubious attention of U.S. Sen. Patrick Leahy, D-Vermont, and U.S. Sen. Thom Tillis, R-North Carolina, who, in a letter to U.S. Chief Justice John Roberts, criticized the “extreme concentration of patent litigation” in Albright’s court and the “unseemly and inappropriate conduct that has accompanied this phenomenon.”

In response to the letter, Roberts has requested an official review of the situation.

The letter from Leahy and Tillis says about a quarter of all U.S. patent litigation is pending before Albright, one of about 600 federal district court judges.

“We understand that a single judge in this district has openly solicited cases at lawyers’ meetings and other venues and urged patent plaintiffs to file their infringement actions in his court,” and has “repeatedly ignored binding case law and abused his discretion in denying transfer motions,” the senators wrote.

According to the letter, in the two years before Albright’s appointment, the Waco court averaged one patent case a year. Last year, the court was on track to hear more than 900 patent cases, it says.

Besides teaching at Baylor, Henry has been a prominent patent litigator for 35 years and an adviser in domestic and foreign intellectual property asset management. He opened the Waco office of Gray Reed in 2019 as its IP litigation section head, but became a partner with Munck Wilson Mandala in July and helped establish its Waco office.

David Henry has been a prominent patent litigator for 35 years and an adviser in domestic and...
David Henry has been a prominent patent litigator for 35 years and an adviser in domestic and foreign intellectual property asset management.(Courtesy Photo)

Henry estimates that Albright’s patent docket could be reduced by 90 percent under Garcia’s new order.

“I have little doubt that the Waco court will remain a major patent litigation venue,” Henry said. “My initial thoughts are that it is possible, by my reading of certain rules, that judges who are assigned some of these Waco-filed patent cases could even transfer the cases back to Judge Albright in Waco.

“So with that, together with the overall burgeoning Waco economy and the legal work that that generates, I think the most general practice firms – firms with broader practices than just patent litigation and who may have been initially attracted to Waco for the patent litigation work – will want to stay here,” he said.

Henry continues to defend Albright and his decision to promote his court as the place for patent litigation.

“In my opinion, parties to patent cases on both sides of the case benefit from having their cases in one of the nation’s district courts with a judge that not only has vast experience in and wants to handle patent cases, but intentionally equipped the court to efficiently handle patent cases. A patent litigant in a case will no longer have certainty of those benefits.”

Henry said that all the judges in the Western District of Texas are “skilled, talented and dedicated.” But not all want to handle patent cases and have said so publicly, Henry said.

“And not all courts intentionally hire law clerks with technical backgrounds and even patent litigation experience, or issue standing orders tailored for patent cases, or by having ready technical advisers as may be needed for more complex technology,” Henry said. “I am also not personally aware of any federal judge who actually litigated patent cases for 20 years as Judge Albright did.

“For at least those reasons, I merely think that processes in patent cases may slow a bit in some of the other Western District of Texas courts, as it would in most any federal courts in the land without such special tooling for patent cases, as it were, that the Waco court has,” he said.

Waco attorney Andy Powell, a patent litigator with Naman Howell Smith & Lee, said Albright has a “wealth of knowledge” in the area of patent law and called Garcia’s order “unexpected and unfortunate.”

“While we are blessed with many excellent judges throughout the Western District of Texas, patent cases frequently involve complex technical and procedural issues and Judge Albright is a judge that understands those issues very well and he is passionate about patent law,” Powell said. “So this is an unfortunate turn of events for local patent litigators and their clients.”

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