How Waco became a patent litigation hotspot
When Google’s top lawyer complained about patent-infringement plaintiffs flocking to file cases with one federal judge in Waco, Texas, she joined academics, senators, and the US Supreme Court chief justice, who had all previously criticised this concentration.
“A culture of litigation” was undermining innovation, Halimah DeLaine Prado, Google’s general counsel (GC), wrote in an April blog post. She noted that almost 25 per cent of all US patent cases were being filed in “a single courthouse”.
US District Judge Alan Albright presides in the single courthouse in Waco, a Texas town about 100 miles north of Austin, which Prado singled out. Albright began openly advertising at industry conferences and web-posted events that he wanted to hear patent cases after his appointment was confirmed in September 2018.
On the bench, Albright — a former patent litigation partner at Houston’s Bracewell, and federal magistrate — established fast-track procedural rules for patent infringement suits, which his critics have deemed to be more favourable for plaintiffs.
Some 900 patent infringement cases are now pending before Albright, even though his refusals of defendants’ requests to transfer out of his court have been repeatedly overturned by the US Court of Appeals for the Federal Circuit.
The concentration of cases, if it continues unabated, will draw the attention of patent litigation lawyers worldwide since companies with global operations are regularly being called to appear as defendants in Albright’s court.
In November 2021, two US senators who serve on the Senate judiciary committee — Thom Tillis, a Republican from North Carolina, and Patrick Leahy, a Democrat from Vermont — sent a letter to Chief Justice John Roberts lamenting what they described as Albright’s “clear and egregious abuses of discretion”. They complained about the “extreme concentration of patent litigation” at his court, as well as his “unseemly and inappropriate conduct that has accompanied this phenomenon”.
In his annual report issued in January, Roberts acknowledged the senators’ concerns. The Chief Justice said he has asked the director of the federal courts’ administrative office, to evaluate “case assignment procedures” which “in effect, enable the plaintiff to select a particular judge to hear a case”.
Two law professors were the first to issue warnings about the concentration of cases coming before Albright. “[A] judge advertising for patent cases and plaintiffs shopping for that judge undermine public confidence in the impartiality of the judiciary, make the court an uneven playing field for litigants, and facilitate the nuisance suits patent trolls favour,” Jonas Anderson at American University’s Washington College of Law and Paul R. Gugliuzza at Temple University’s Beasley School of Law wrote in a paper posted online in August 2020.
By presiding in so many patent cases, Albright accumulates knowledge of the intricacies of them, which Anderson concedes can benefit both plaintiffs and defendants. But Anderson claims that, during more than three years on the bench, Albright has established procedural rules that favour plaintiffs beyond just aiming for a speedy trial — which, in itself, gives them better odds of securing settlements.
In response, Albright says: “There is certainly no evidence that any one side is benefiting from the fact that cases are being filed in my court.” He added that he has “worked hard” to get patent cases to trial within 24 months — speediness that benefits all litigants — and to develop procedural rules that are “party agnostic”.
By his estimate, patent infringement plaintiffs and defendants have won an equal number of verdicts in his courtroom. As to the appellate court’s ruling that he erred by denying defendants’ transfer requests, those opinions give “me more guidance about what to do in the future”, Albright explains. “We do everything we can to comply with what we think the Circuit is trying to tell us.”
Anderson suggests it is too early to measure any biases of Albright based on trial wins and losses, as he has only been on the bench for four years and many patent cases take at least that long to get to trial.
To staunch the flow of patent plaintiffs choosing Albright, and to prevent other federal judges from following his example, Anderson advocates for revised jurisdictional and case-assignment rules. He wants plaintiffs to file cases only in a division, not simply the broader district. Under that proposal, plaintiffs could no longer file in Waco simply because the defendant has established a retail store somewhere else in the Western District, for example.
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Anderson also wants rules that require single-judge divisions to share case assignments randomly with other judges in their district, so plaintiffs no longer have the option to pick who will hear their claims. Either Congress or the federal court administrators could impose those changes, Anderson says.
Google’s Prado, who took over Google’s GC role in August 2020, is pinning her hopes on Roberts’ mandated review of court polices.
“We hope it urgently addresses the judicial imbalances caused by abusive forum shopping,” she wrote on her blog.