The Impact of New Patent Litigation Assignments Rules in the Western District of Texas

Starting July 25, 2022, Judge Alan Albright was no longer automatically assigned to all patent cases filed in the Waco Division of the Western District of Texas, where he is the sole district judge.¹ Instead, Orlando L. Garcia, then the Western District of Texas chief judge, ordered that patent cases filed in Waco be randomly assigned to one of the 12 district judges in the Western District. The New Western District of Texas chief judge, Alia Moses, kept the Assignment Order in place, with the exception that Senior Judge Frank Montalvo in the El Paso Division would not accept Waco patent cases.²

If patent case assignments were random, therefore, one would expect each of the 12 judges to receive approximately 8% of the total number of patent cases filed in the Waco Division since the Assignment Order. But the data as reported by Lex Machina indicates that for the first seven months under the new policy, assignments were not entirely random, with Judge Albright continuing to see the lion’s share of patent cases filed in Waco. Under the Assignment Order, each month between 36% and 65% of patent cases filed in Waco were assigned to Judge Albright. Overall, during the first seven months of the new assignment policy, nearly 50% of newly filed patent cases were assigned to Judge Albright.

Percentages of New Waco Patent Cases Assigned to Judge Albright

Some of the cases assigned to Judge Albright during this period are part of a wave of cases filed by plaintiffs with related cases already pending in his court. In October, for example, a single plaintiff, Cedar Lane Technologies, filed 18 lawsuits, all of which were assigned to Judge Albright because he was already presiding over related cases. Several other plaintiffs filed more than 10 lawsuits each in the first few months of the new assignment policy, all of which were assigned to Judge Albright because he was hearing pending related cases. This alone, however, does not fully account for the share of Waco patent cases assigned to Judge Albright.

Something appears to have changed in the past month, however. During March 2023, 37 patent cases were filed in the Western District’s Waco Division, and Judge Albright received only five of them (14%). In fact, two other judges received more patent cases in a single month than Judge Albright for the first time since he took the bench in September 2018 – Judge Robert Pitman received eight patent cases, and Judge Lee Yeakel received seven.

Prior to Judge Albright’s taking the bench, Judges Pitman and Yeakel saw by far the most patent cases. Between September 2017 and August 2018, 96 patent cases were filed in the Western District, with 59 of those assigned to Judge Yeakel and 40 to Judge Pitman (the numbers do not sum to 96 because of transfers between judges). Between September 2016 and August 2017, Judge Yeakel received 31 of 59 patent cases filed in the Western District, while Judge Pitman received 19. This trend continues under the Assignment Order, with Judge Yeakel seeing 40 patent cases (9%) and Judge Pitman 55 (13%) between August 2022 and March 2023. Thus it seems that the judges receiving the most patent cases under the new assignment system are the judges with the most patent experience historically.

It was widely believed that the new patent case assignment policy would have a significant impact on patent filings in the Western District. Indeed, the overall number of patent cases filed in the Western Division of Texas has decreased under the new policy. This is generally consistent with a year-over-year decrease in patent filings nationwide, which is attributable, at least in part, to a significant decrease in NPE filings in the first quarter of 2023, according to a recent RPX report.³ The Eastern District of Texas and Central District of California saw a small increase in patent case filings year-over-year.

New Patent Case Filings in Active Forums for Patent Litigations

Until March, patent litigators filing a case in the Western District’s Waco Division would have approximately a 50% chance of being assigned to Judge Albright, or a 20% to 25% chance of being assigned to Judge Yeakel or Judge Pitman, who also have significant patent experience. Since March, however, this trend appears to have shifted. Additionally, Judge Yeakel announced in March 2023 that he will retire on May 1, 2023, which will undoubtedly affect the manner in which patent cases filed in Waco are assigned to judges in the Western District. We will update this analysis as case filings and assignments continue to develop in the Western District of Texas.

 

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^[1] July 25, 2022 Order Assigning the Business of the Court as it Relates to Patent Cases, https://www.txwd.uscourts.gov/wp-content/uploads/2022/12/Order-Assigning-the-Business-of-the-Court-as-it-Relates-to-Patent-Cases-072522.pdf (the “Assignment Order”).
^[2]December 16, 2022 Amended Order Assigning the Business of the Court, https://www.txwd.uscourts.gov/wp-content/uploads/2022/12/Amended-Order-Assigning-Business-of-the-Court-121622.pdf.
^[3]RPX Q1 in Review, https://assets.law360news.com/1596000/1596322/rpx-q1-in-review-april-2023.pdf.