By Paul R. Gugliuzza, Professor of Law, Temple University Beasley School of Law and Jonas Anderson, Associate Dean for Scholarship and Professor of Law, American University Washington College of Law
The biggest story in patent law over the past three years has been the emergence of the Waco Division of the Western District of Texas as the undisputed capital of U.S. patent litigation. The lone district judge sitting in Waco, Judge Alan Albright, has engaged in an extensive campaign to entice patentees to file suit in his courtroom. And those efforts have succeeded. In 2016 and 2017, the two years before Judge Albright took the bench in 2018, the Waco Division received a total of five patent cases. In 2019, 217 patent suits were filed in Waco. In 2020, that number increased to 761—more than the number of patent cases filed in any other district court in the country and over 20% of patent cases filed nationwide. Judge Albright is on track to receive well over 700 cases again in 2021.
Most patent suits in Waco are filed by NPEs and involve computers and communication technology. Judge Albright’s courtroom is particularly attractive to NPEs because he moves cases quickly through litigation and his procedural rulings tend to favor patentees—both of which increase patentees’ leverage during settlement negotiations. Quicker settlements for larger amounts allow NPEs to more rapidly move on to their next target.
Not surprisingly, many defendants sued in Waco try to escape. The primary mechanism they use is 28 U.S.C. § 1404(a), which permits a district judge to transfer a case to another district (or to another division within a district) “[f]or the convenience of parties and witnesses, in the interest of justice.” In his three years on the bench, Judge Albright has developed a reputation for being less likely to transfer cases than other district judges. But as we, along with Jason Rantanen, discussed in a series of recent posts, the Federal Circuit has begun to push back, repeatedly using the extraordinary writ of mandamus to overturn decisions by Judge Albright denying transfer under § 1404(a).
The Federal Circuit’s interventions raise an interesting question: Does Judge Albright care? In an order issued earlier this week, he granted a defendant’s motion to transfer a case from the Western District of Texas to the Northern District of California, but not before criticizing appellate precedent on transfer as inconsistent and “out of touch” with modern patent litigation. But what do the numbers look like? Has Judge Albright become more inclined to transfer in the wake of the Federal Circuit’s mandamus grants? Or is he stubbornly refusing to change his approach?
As part of our on-going research on patent litigation in the Western District of Texas, we have collected all of Judge Albright’s orders deciding § 1404(a) motions that are publicly available. Interesting trends emerge when comparing Judge Albright’s grant rates to the Federal Circuit’s interventions through mandamus.
Overall, Judge Albright has decided sixty contested motions to transfer cases away from the Western District of Texas under § 1404(a) (excluding orders granting transfer after the Federal Circuit granted mandamus and orders involving contractual forum selection clauses). He has granted sixteen of those motions, for a grant rate of 26.7%.
Figure 1: Judge Albright Decisions on Contested Motions to Transfer Away from the Western District of Texas Under § 1404(a)
Looking at the numbers year-by-year, as in the figure above, it looks like Judge Albright’s transfer rates have changed over time, but not too much. Judge Albright decided only three § 1404(a) motions in 2019, his first full year on the bench, and denied all three. In 2020, he decided thirteen § 1404(a) motions, granting three and denying ten, for a grant rate of 23.1%. So far in 2021, he has decided forty-four § 1404(a) motions, granting thirteen and denying thirty-one, for a moderately higher grant rate of 29.5%.
What happens when we compare grant rates before and after key Federal Circuit decisions? The first mandamus petition the Federal Circuit granted overturning a transfer decision by Judge Albright was In re Adobe, which issued on July 28, 2020. But it was the second Federal Circuit decision—and first precedential decision—to grant mandamus and order Judge Albright to transfer a case that garnered the most attention. In that case, In re Apple, the Federal Circuit took the unusual step of holding oral argument. (Mandamus petitions are practically always decided on the briefs alone.) On November 9, 2020, the Federal Circuit granted Apple’s petition over a fiery dissent by Judge Moore, who accused the majority of setting precedent that will allow future mandamus petitions to be granted “based almost entirely on ad hominem attacks on esteemed jurists.”
Figure 2: Judge Albright Decisions on Contested Motions to Transfer Away from the Western District of Texas Under § 1404(a), Before and After In re Adobe
As the figures above indicate, before Adobe, Judge Albright had decided fifteen motions to transfer under § 1404(a), granting two and denying thirteen, for a grant rate of 13.3%. Since Adobe, he has decided forty-five motions to transfer under § 1404(a), granting fourteen and denying thirty-one, for a grant rate of 31.1%. Taking the Adobe decision as the critical date (between Adobe and Apple, Judge Albright decided only one contested § 1404(a) motion, and he granted it), it appears Judge Albright is clearly more willing to grant transfer in the wake of Federal Circuit skepticism about his decisions.
One final way of slicing the data: of the fourteen Federal Circuit grants of mandamus overturning transfer denials by Judge Albright, ten have occurred in the past four months, since June 30, 2021. Before the recent avalanche of mandamus grants began, Judge Albright had decided thirty-six § 1404(a) motions, granting seven and denying twenty-nine, for a grant rate of 19.4%. Since June 30, he has decided twenty-four § 1404(a) motions, granting nine and denying fifteen, for a noticeably higher grant rate of 37.5%.
Figure 3: Judge Albright Decisions on Contested Motions to Transfer Away from the Western District of Texas Under § 1404(a), Before and After June 30, 2021
* * *
While our dataset is not huge, it does seem that Judge Albright’s proclivity to grant § 1404(a) transfer motions is increasing. To be sure, any increase may not be caused by the Federal Circuit’s interventions. As the sheer number of patent cases on Judge Albright’s docket has increased over the past two years, many of those cases likely have more tenuous connections to the Western District than the cases filed early in Judge Albright’s tenure. Also, it’s possible that Judge Albright has become more willing to grant transfer to relieve caseload pressure on his docket and maintain the fast case schedule that is a reason his court is particularly attractive to patent plaintiffs. In addition, broader criticism of Judge Albright’s forum selling practices—separate and apart from the Federal Circuit’s interventions—could be having some effect on Judge Albright’s transfer decisions.
Moreover, even the 37.5% grant rate over the past few months is low compared to the grant rates in other districts with large dockets of patent cases, which hover around 50%. (We’re working on updating the transfer data for other districts and will share our results in the near future.) And, don’t forget, given the nature of patent litigation and the West Coast-based parties typically involved (Google, Apple, Microsoft, and Amazon are all among the most common defendants in cases before Judge Albright), we would expect to see significantly higher transfer rates in cases filed in Waco, Texas, as opposed to cases filed in, say, the Northern District of California.
So, how did it start? It was pretty hard to obtain transfer away from Judge Albright’s Waco courtroom. How’s it going? Still not easy, but not impossible. Time will tell whether the Federal Circuit’s interventions through mandamus will be sufficient to combat the unhealthy court competition that is causing patent cases to pile up in Waco. But, given the case-by-case nature of the writ, the nominally deferential standard of review, and the expense of pursuing an interlocutory appeal, count us as skeptical that mandamus is anything more than a band-aid for well-resourced defendants to challenge the most obviously incorrect transfer decisions by Judge Albright.
In the interest of justice, patent cases should be decided sooner — not later. Patent defendants employ delaying tactics all the time to drive up litigation costs and to delay final judgment.
1.1.3 below is exactly correct on this point. This is why the IPR statute sets a strict one-year time limit (with a possible extension of six extra months for exceptional circumstances)—so that IPRs should not become yet one more tactic for strategic delay. Unfortunately, the CAFC has messed up the application of this provision just like it has messed up nearly every other aspect of the implementation of IPRs, such that they largely have turned into a mechanism for additional cost and delay. But I digress…
Insofar as Judge Albright is trying to move cases along expeditiously, he is doing the right thing. For better or worse, however, this really just is not a relevant consideration to the forum non conveniens analysis, and the CAFC is correct (however regrettably) not to let such considerations intrude into the forum non conveniens analysis.
To my mind, there really needs to be reform of the patent litigation “infrastructure” (so to speak). Just as we have a special appeals court for patent cases, we should have a special purpose set of science-trained district judges who handle nothing but cases whose appellate jurisdiction will lie in the CAFC. There should also be a special set of FRCP just for these judges. One rule particular to this FRCP is that the defendant (or the plaintiff in a DJ for invalidity) must pick no more than two grounds of invalidity (two different art combinations count as two different grounds).
No more than two?
How arbitrary (and capricious).
Over on Gene’s blog today, the patent litigation tracking author says “..he’s up to 17 mandamuses on the issue of venue, mostly over the past calendar year by my count, which as far as I know is a single-judge record.”
Re: “Judge Albright’s courtroom is particularly attractive to NPEs because he moves cases quickly through litigation.”
I would like to see supporting data for that. Your above data notes 1678 total patent suit filings in Waco for this judge. The law firm data I had noted in comment 4 on the blog prior to this one had showed only 6 completed patent jury trials. Your venue-transfer-out numbers above look less than 50. How many non-jury-trial suit disposals of that huge docket have their been? Unless it is huge, I do not see how these cases are moving “quickly through litigation?” [I do note reports of early and fast Markman hearings there, but they do not end patent suits unless followed by granted non-infringement decisions based on the Markman.]
“a fiery dissent by Judge Moore, who accused the majority of setting precedent that will allow future mandamus petitions to be granted ‘based almost entirely on ad hominem attacks on esteemed jurists.”
That.
“That”…
… is not really any different than what you see here, from the comment from Bored Lawyer, to the academics writing these articles who immerse themselves with “Patent Tr011” rhetoric (follow the link in the story with the hyperlinked word “broader criticism”) and themselves use loose innuendo such as “selling venue.”
The very notion of someone treating a patent right (gasp) as presumed valid, and seeking expeditious processing or even wanting to be the “expert” court for patent litigation is DE FACTO treated as “wrong.”
As I noted:
It would be interesting to see if the grants of mandamus by the CAFC are dependent on the motion panel. Under IOP #2(1), three judges are appointed to serve on the motions panel each month. If several mandamus petitions are filed in the same month, they would all be decided by the same panel of judges (with assistance of the Senior Staff Attorney).
“In an order issued earlier this week, he granted a defendant’s motion to transfer a case from the Western District of Texas to the Northern District of California, but not before criticizing appellate precedent on transfer as inconsistent and “out of touch” with modern patent litigation.”
It’d be very nice if you would post the transfer order rather than link to a paywalled site.
“this Court has stressed that the focus on physical location of electronic documents is out of touch with modern patent litigation.”
This point is surely correct. Mind you, it is easily possible for the law (which changes more slowly than technology) to be “out of touch” with tech reslity. When that happens, it is the duty of the court to enforce the law, even though the law will appear somewhat daft. It is for Congress or the SCOTUS (as appropriate) to correct the law in those circumstances, and for the lower courts to enforce the current law unless and until the correction arrives.
The law here is fine – the relevant word in 1404(a) is “convenience.” As tech evolves, what is convenient changes. In the 1404(a) context, it’s the Federal Circuit that refuses to adapt, not the law.
It’s not the Federal Circuit. Location of documents is a factor that has to be considered under pretty much every Circuit’s transfer jurisprudence. The Fifth Circuit affirmed that in 2008 in Volkswagen. The Third Circuit hasn’t touched that since 1995 in Jumara. None of binding regional circuit cases on transfer are particularly recent.
The reality is that much of the law on the factors that have to be considered under 1404 is out of touch with modern litigation practices because it is all based on applying Supreme Court precedent that predates e-discovery. Transfer is just not an issue that arises nearly as often outside of patent litigation as it does in the patent litigation context, so the regional circuits don’t address it frequently. And outside of the Atlantic Marine case on forum selection clauses, it’s been decades since the Supreme Court has heard a 1404 case.
One of these days, a case will bubble up to a regional circuit and a party will seek rehearing en banc on it, and the law on 1404 may evolve, but it’s going to take the right set of circumstances as well as the money to afford a mandamus.
LOVE the caveat of “as appropriate” – given that patent law is one explicit area of law in which a particular branch (hint: NOT the judicial branch) has been directly allocated authority under the Constitution.
Or maybe Greg still thinks that the Supreme Court is not bound by the Constitution….
I have to wonder what State Greg has attorney license in.
Electronic documents are not the important forum inconvenience issue in transfers to a more convenient forum. Where all the witnesses are located that need to be deposed and cross-examined in discovery, or compelled to answer questions, and/or appear at trial, is far more important. [None at all are in EDTX in most of these mandamus venue transferred cases.] [Not even the [inherently far less*] plaintiff’s witnesses may be in EDTX for those patents sued on in EDTX by shell corporation run by out-of-state PAEs.]
*Patent owners only have prove infringement, while all possible defendant issues – invalidity, unenforceability, etc. – have to be proven by defendants by clear and convincing evidence.
So you are saying that remote witness deposition is an impossible hurdle to overcome in a convenience evaluation?
Interesting data. Thanks for this.
“The lone district judge sitting in Waco, Judge Alan Albright, has engaged in an extensive campaign to entice patentees to file suit in his courtroom.”
Which makes him totally unsuited to determine venue motions in patent cases.
Or not.
Does his actions actually violate anything?
Does the notion of expedient processing actually “favor the patent holder” (as suggested by the author)?
Are any of his decisions actually prejudicial to any party before him?
Instead of innuendo, if he has actually violated any judicial standard, one should be clear about what standard was actually violated and how (including noting procedures to defrock the judge).
If instead, one merely does not like that a judge is not being into the pablum propaganda of Efficient Infringers, and merely does not like the effect of a judge exercising what that judge believes to be his discretion, then that one can pound salt.
Re: “Does .. expedient processing actually “favor the patent holder?”
It is commonly considered to do so in a true “Rocket Docket” like EDVA. For at least two asserted reasons: The early high discovery costs for defendants makes more decide early for cost-of-litigation-avoidance cash settlements. The reduced discovery time and opportunity for defendants to uncover possible defenses.
But is WDTX Waco really a “Rocket Docket?” See comment 6 above.
EDVA suffers from the same characterization issues?
(by the way, you too are employing characterization in a more-than-little slant – See comment 5.1 above.)
>Instead of innuendo, if he has actually violated any judicial standard, one should be clear about what standard was actually violated
The amusing thing is that normal people would consider “mov[ing] cases quickly through litigation” to be a good thing(tm). As the old saying goes, justice delayed is justice denied.
Fair point
“favor the patent holder”
Every day that the alleged infringer continues to infringes favors the alleged infringer and further harms the patentee.
In the interest of justice, patent cases should be decided sooner — not later. Patent defendants employ delaying tactics all the time to drive up litigation costs and to delay final judgment. However, I don’t recall the critics here getting riled up about that. Rather, some here seem to be offended that a patent law-savvy judge wants to bring patent cases into his courtroom. Heaven-forbid, we actually have a judge who knows something about patent law and patent defendants are running away screaming that they want out of his courtroom. What defendant wants a patent-savvy judge? Instead, they want to find a judge in which they can bamboozle him/her, for example, into thinking that a claim like the one at issue in American Axle is somehow is directed to Hooke’s law.
and merely does not like the effect of a judge exercising what that judge believes to be his discretion
This is the problem with the Federal Circuit. They are not reviewing Albright under a clear judicial error standard. They are performing a nitpicking, de novo review that also fails to appreciate that transfer is not mandatory (i.e., “a district court MAY transfer any civil action”) and is at the discretion of the district court.
How dare you Wt provide something that does not fall in line with the desired narrative.
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