Guest post by Professors J. Jonas Anderson and Paul Gugliuzza. Their article Federal Judge Seeks Patent Cases was recently published in the Duke Law Review, and I’m currently working on a project with them on writs of mandamus at the Federal Circuit. – Jason
Following tradition, on the last day of 2021, Chief Justice Roberts provided his annual year-end report on the federal judiciary. In the report, he addressed three issues that have “been flagged by Congress and the press” over the last year. Among them was “the arcane but important matter” of judicial assignment and venue for patent cases.
Let the arcana commence! Let’s talk about judicial assignment of patent cases.
For those unfamiliar with how cases are assigned in district courts, let’s use the Western District of Texas as an example. The Western District of Texas is a vast district, stretching more than 600 miles across from El Paso (on the western limits of the state) to Waco (which is much nearer to Louisiana than New Mexico). When a plaintiff files a suit in the Western District, the suit is assigned to the judges within one of seven divisions that make up the district: Austin, Del Rio (Alpine), El Paso, Midland/Odessa, Pecos, San Antonio, and Waco. But the case is not assigned randomly to one of the divisions; rather, the plaintiff selects (from a drop-down menu) to which of the divisions the case will be assigned. Only after a division is selected by the plaintiff does random assignment occur, with each judge within the division receiving a certain percentage of the cases filed, per a standing order filed (and updated in 2021) by the Chief Judge of the Western District of Texas.
But for certain divisions within the district, individual judges receive 100% of the cases filed, meaning plaintiffs can pick their judge. In the Western District of Texas, this 100% assignment occurs in the Midland-Odessa division (assigned to Judge David Counts), the Pecos Division (also Judge Counts), the Del Rio Division (Judge Alia Moses), and—most importantly for patent law—the Waco Division (Judge Alan Albright). That means that Western District of Texas plaintiffs can “judge shop” for the judge they prefer, at least in those four divisions. Judge shopping is, shockingly, possible in a large portion of district courts across the land, not just in Texas.
Thus, it is great to hear that Chief Justice Roberts is investigating the problem of judge shopping. The practice of “judge shopping” has long been frowned upon by courts; unlike forum shopping, in which the plaintiff chooses the court that appears to be favorable, judge shopping refers to the practice of the plaintiff choosing the specific judge who tries the case. The due process and fairness concerns inherent with a plaintiff choosing who judges their case has recently been of interest to members of the Senate Judiciary Committee as well.
Yet despite the Chief Justice’s approval of random case assignment, he noted in his year-end report that there is an “important and sometimes competing” value at issue with mandating random assignment of patent cases: Congress has shaped the federal courts into districts and divisions “so that litigants are served by federal judges tied to their communities.” Thus, according to Chief Justice Roberts, randomization that severs litigants from federal judges in their communities presents a conflict of values that the judiciary must resolve.
This is largely irrelevant for patent cases. There is generally little to no local community that would be inconvenienced by random assignment of cases. For proof, just take a look at Judge Albright’s docket. The overwhelming majority of patent plaintiffs in Waco are not from Waco, the Western District, or even Texas; they are filing in Waco because they know that they will get Judge Albright, not because Waco is their “community.” In fact, in reviewing the over 800 Waco patent plaintiffs in 2020, we could only find two plaintiffs with corporate headquarters in Waco (more on that later). To be sure, there are quite a few Waco plaintiffs with headquarters in Austin (within the Western District of Texas) or Dallas (in the Northern District of Texas). But, if one is truly concerned about judges being tied to local communities, the Austin division of the Western District of Texas or the Dallas division of the Northern District of Texas would be better venues in which to litigate for those companies. If anything, current practice draws litigants away from local communities and into far-flung districts based on the perceived strategic and procedural peculiarities of particular judges.
The two exceptions to the no-Waco-connection rule actually prove that patent plaintiffs do not have special local ties to Waco. The two exceptions are WSOU Investments and Voip-pal.com. These companies filed 181 patent suits in Waco in 2020, 169 of which were filed by WSOU. WSOU opened an office in Waco, but apparently uses the office just to avoid having its cases transferred away from Waco. WSOU is a litigation-funded assertion vehicle run by Craig Etchegoyen, who himself has run or controlled non-practicing entities like Uniloc and has filed hundreds of lawsuits in Texas, but who himself lives in California. As the Federal Circuit explained in In re: Juniper Networks:
[WSOU]’s presence in Waco appears to be both recent and relatively insubstantial. The office was established only a few months before the  complaints against Juniper were filed, and the activities of the office are largely tied to bringing lawsuits in that court. [WSOU] has only two employees who work from Waco, one of whom is its in-house attorney responsible for litigation. The principal officers of [WSOU] are located in California.
This is an example of a local office established simply for the purpose of judge-shopping. Certainly, these cannot be the sorts of community interests that Chief Justice Roberts is worried about undermining with randomization of case assignment.
In fact, the proliferation of intra-division transfers of patent cases from Waco to Austin demonstrates that Waco is not generally the location in which plaintiffs want to litigate; it is the place in which the judge they prefer is located. For roughly his first two years on the bench, Judge Albright had a practice of granting transfer from Waco and Austin, yet remaining the judge on the case. This practice appears to have resulted in other judges stepping in to end the practice, but the fact that plaintiffs were selecting Waco (and thus Judge Albright) and then turning around and requesting that the case be transferred to Austin—a division they could have selected in the first place—demonstrates that there is often not much convenience, or local interest, gained by having the case tried in Waco. The only thing many of these plaintiffs want with Waco is Judge Albright; as long as he is on the case, the plaintiffs would prefer to be in Austin.
We have recently written an article in which we proposed a two-prong solution to the judge shopping problem. We propose fixing the judicial assignment process by ensuring that patent cases are assigned randomly among multiple judges and by altering the patent venue statute to require that a plaintiff demonstrate that venue exists within the division (not merely the district) in which the case is assigned. These two changes are simple to implement and would make it harder for plaintiffs to shop for individual judges—a practice that is flatly inconsistent with notions of judicial fairness and impartiality.