Patent case filings surge in the WDTX

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Intellectual Property and Technology Alert

By:

A new federal judge is presiding in Waco, Texas, resulting in a surge of new patent case filings in the Western District of Texas. Judge Alan Albright, an experienced patent litigator and former United States Magistrate Judge, was nominated in January 2018 and sworn in as a District Judge in September 2018.

Judge Albright is well known in the patent community as he spent much of his career in private practice handling high-stakes patent litigation – representing both plaintiffs and defendants. His time in private practice included several years as a partner in the Austin office of DLA Piper's predecessor firm, Gray Cary, where he led the Texas IP practice group and worked closely with several of the partners still practicing there today.

Soon after Judge Albright was nominated, and accelerating considerably since his confirmation, patent case filings have spiked in the Waco Division of the Western District. For example, in the two-year period from 2016 to 2017, only 5 patent cases were filed in Waco. In contrast, since January 2018, 47 patent cases have been filed in Waco, with 25 of those cases filed since January 2019. This puts Waco on pace for roughly 150 new patent cases in 2019 – a huge increase from the 2.5 filings per year rate in 2016-2017.

Several key factors appear to be motivating this surge in filings.

  • First, Judge Albright is the only Article III judge in Waco and has made it clear publicly that (1) he welcomes and understands patent cases and has the time to give them proper attention; and (2) he intends to be readily accessible to litigants to help efficiently manage his patent cases. The increase in filings suggests that litigants value Judge Albright's significant patent litigation experience, and his stated desire to grow the patent docket in Waco.
  • Second, Judge Albright has adopted standing orders for patent cases that are based on input from counsel for plaintiffs and defendants, are intended to be user-friendly, and strike a balance that is fair to both sides. Shortly after being sworn in, Judge Albright reached out to local practitioners in Austin and elsewhere in Texas to establish a working group of more than 20 patent litigators (on both sides of the v.) to help him craft his patent case procedures (there are no Western District-wide local patent rules). As part of that process, this author had the honor of co-leading the group, working closely with Judge Albright and other leaders of the local bar to help develop his standing orders for patent cases. Those orders were promulgated in January 2019, and are now being used in Waco patent cases. One noteworthy example is that Judge Albright will first address claim construction and conduct a Markman hearing before discovery fully opens. As another example, Judge Albright will not permit filing of motions to compel discovery until after the parties have conferred, and contacted chambers to attempt to resolve the dispute.
  • Third, cases filed in Waco may not be susceptible to challenges for improper venue. The Western District of Texas, including Austin and its surrounding areas, is home to offices and facilities of many of the country's largest technology companies. Given recent developments in venue law, the physical presence of companies in the Western District means that venue for many patent cases likely will be proper there. In contrast, new case filings have decreased in the historically popular Eastern District, where fewer companies have facilities.

As more patent cases are filed in Waco, knowledge of Judge Albright's rules and procedures will be of greater importance to a growing number of companies. Given our location in the district and our familiarity with Judge Albright and his procedures, we can help you evaluate and navigate issues relating to litigating before the Western District of Texas' newest federal judge.

Learn more by contacting the authors or your usual DLA Piper contact.