Waco is Waning

by Dennis Crouch

If you want a pro-patent judge, the conventional wisdom since 2018 has been to file your complaint in the Waco Courthouse of the Western District of Texas.  Judge Alan Albright is the only federal judge stationed in Waco and so he hears the case. This setup has led to substantial consternation among accused infringers who don’t really like Waco and especially don’t like Judge Albright.  With increasing political pressure, W.D.Texas Chief Judge Orlando Garcia has changed the rules.  Going forward patent cases filed in Waco go on the wheel and be randomly assigned to one of twelve judges.

 

69 thoughts on “Waco is Waning

  1. 13

    The vast majority of companies / cases there have no connection to the state…

    Huh? The vast majority of cases go there precisely because the companies are chartered in Delaware. That is hardly “no connection.”

    1. 13.1

      Sorry, this was meant to be a reply to OC down at the bottom of this thread.

    2. 13.2

      You appear to quite miss the point Greg.

      Chartering IN the state is an artificial contrivance — and a much more “esoteric” connection than actually doing business (and gaining material business transactional benefit) that is at contrast.

      1. 13.2.1

        The state in which a corporation is incorporated [quite often Delaware] is its venue residence under the patent venue statute.

  2. 12

    Waco, we hardly knew thee.

    As China and Big Tech rejoice . . . while Congress finger-twiddles . . . innovation dies . . . and inventors cry.

  3. 11

    Ironically (?), WDTX does have one vacancy that’s been sitting there for Biden to fill since almost 1.5 years ago. The vacancy isn’t for Waco, but now under this brave new regime, it seems that person could still receive patent cases.

  4. 10

    “Going forward patent cases filed in Waco go on the wheel and be randomly assigned to one of twelve judges.”

    Is this how we be writing in Missouri?

  5. 9

    Sounds like a good thing to me. Within their rights to do so and probably better overall. Not good to have any one judge with so much power even if I like his pro-patent stance.

    1. 9.1

      Context – and here, animus counts.

      As I have noted:

      The consternation is LESS what one judge does and MORE what one judge does.

    2. 9.2

      >even if I like his pro-patent stance.

      My impression is that it was less his pro-patent stance, than his pro-trial stance i.e., Waco was current rocket docket.

      But, I am not a litigator.

      1. 9.2.1

        OC,

        I do not think “pro-trial” is a correct characterization, as (and opposite of the intonation of Paul F. Morgan who is ONLY a litigator), the Judge’s actions accelerated cases to the point that trial’s were avoided.

        The “unhappiness” is entirely traceable to the fact this avoidance has been favoring those with patents.

  6. 7

    So is there a citation to some new order that was released? I don’t see anything linked.

  7. 6

    Finally, and not to mention the highly critical CAFC mandamus decisions, the huge Waco backlog of [roughly 1/4 of all] U.S. untried patent suits, a threat of legislation, and the recent PTO Directors Notice effectively ending IPR Fintiv denials based on unrealistic projected trial dates, which, along with Judge Albright’s stay refusals, had previously prevented defendants from having the much lower cost and faster pre-trial IPR invalidity testing opportunity intended by Congress.
    However, some patent litigators are already suggesting that several of the other 11 WDTX judges do not want patent cases and will be able to re-assign their patent suits to Judge Albright, whom we can be quite sure would take them. Note comment 4 here.

    1. 6.1

      [T]he other 11 WDTX judges do not want patent cases and will be able to re-assign their patent suits to Judge Albright, whom we can be quite sure would take them.

      I suppose that the chief could deal with this as well, if he feels the need, no? Really though, the desire of certain district judges to offload their patent cases bespeaks a flaw in the present system. There really ought to be a specialized district court system for patent cases, just as there is a specialized appellate system.

      1. 6.1.1

        yeah but is there enough volume of cases to truly support that wholly separate system?

        1. 6.1.1.1

          Definitely yes. There are all sorts of ways that one could make such an arrangement work cost-effectively.

          1. 6.1.1.1.1

            Well then you should take it to that group that ned used to be a part of and get them to kick it up to congress to do/setup.

          2. 6.1.1.1.2

            You will be glad to hear the breaking news that the congress got around to approving a semiconductor bill with 25% tax credit for new domestic chip manufacturing investments along the line of our previous discussion on that matter and the chip shortage etc.

            1. 6.1.1.1.2.1

              I am definitely glad to hear about progress on the CHIPS act, although I am not sure that it is yet accurate to say that “congress… approv[ed]” it.

                1. I’ll be dam, pelosi did something worthwhile back in the day, among a few other things I recall. She literally did the same thing that I have many times considered doing myself, and in front of cameras (of course she was protected by her office also). Pity she doesn’t do more now. I guess I’m willing to spot her her insider trading $$$ now.

                2. Pity she doesn’t do more now.

                  The blogger was motivated to find the video because of Pelosi’s upcoming trip to Taiwan. Presumably she is going there to “do more now.”

                3. Noteworthy?

                  Something she did in 1991?

                  The fact that she may have done something then – but is STILL in Office now is a much more noteworthy item – and NOT for the good.

              1. 6.1.1.1.2.1.2

                Yeah I had copied that congress had approved it straight from a breaking news email I got. But apparently the house didn’t pass it yet. It’s actually much larger and more expansive than I knew. Sargar breaking it down.

                link to youtube.com

    2. 6.2

      “some patent litigators are already suggesting that several of the other 11 WDTX judges do not want patent cases and will be able to re-assign their patent suits to Judge Albright, whom we can be quite sure would take them.”

      If 7 of the judges give all their patent cases to Albright, there’s still a 1/3rd chance of a random Waco filing failing to end up before Albright. That seems good enough to me.

      1. 6.2.1

        One can hope that ALL judges there adopt the “Albright Way” (as is the Court of Federal Claims).

  8. 5

    How much longer is Gilstrap the chief of his district?

    1. 5.1

      3 more years. He became chief judge in 2018, and he holds the position for 7 years. Judge Mazzant in Sherman will then become chief judge in EDTX.

  9. 4

    As someone that has had (and still has) many cases in the WDTX, this is good news for the country. Judge Albright doesn’t read the briefs (there is no human way that he could), phones it in for hearings, has little/no idea what is going on in a case until the trial. Not a way to run 25% of the patent cases in the United States. Not only that, his former clerk, Joshua Yi, is appointed as “technical advisor” in most cases. He charges $700+ hour to read Markman briefs. Adds no value and represents a huge tax on the litigants.

    1. 4.1

      Huh? The parties have to foot the bill for this pork?

      There are PhDs in India who will do the same for for $7/hour. And who will understand the technical aspects.

    2. 4.2

      Gilstrap does this in the Eastern District as well.

  10. 3

    Albright’s attorneys (some of the best in Texas) are deeply contemplating the filing of a takings lawsuit against the Chief Judge in response to this heinous action.

    1. 3.1

      Malcolm being Malcolm

    2. 3.2

      I assume that you are joking. But that would be good comedy to see such a lawsuit, which has 0% chance of success. Those “attorneys” (whoever you are referring to) do not have a vested right in having plaintiffs being able to select the judge. That is just plain st*pid.

  11. 2

    What needs to happen next is that all of the cases currently assigned to Albright need to be reassigned using the same random 12 judges. I’m sure the Fed Circuit will appreciate the huge drop in mandamus petitions that follow once this is takes effect.

    1. 2.1

      Unless of course all 12 judges take the “Albright” path.

      This is something that is easy to see happening, given as I have noted previously, there are other courts adopting the methodology that Albright follows (for example, the Federal Court of Claims has publicly advocated following what Albright does).

      The consternation is LESS what one judge does and MORE what one judge does.

  12. 1

    ‘Twas nice while it lasted….

    Good to see the system correcting course, letter bate than neber…

    1. 1.1

      I agree that this is a welcome development. The remaining judicial districts that (1) allow one to choose a courthouse within a district and (2) have courthouses with only one assigned judge (not a majority, but not exactly a rare phenomenon either) need to follow suit. It is not good to have situations where the plaintiff can choose not only the forum, but also the judge.

      Meanwhile, as WT has previously noted, there is always going to be some jurisdiction that is the most popular for patent plaintiffs to file. If this takes the shine off of WD Tex, be prepared for some new target jurisdiction to emerge.

      1. 1.1.1

        “The remaining judicial districts that (1) allow one to choose a courthouse within a district and (2) have courthouses with only one assigned judge (not a majority, but not exactly a rare phenomenon either) need to follow suit”

        There’s nothing here that anyone should follow suit. This order is specific to a subset of Waco cases. People can still Judge shop for other civil litigation in Waco. And if you want judge Moses for a patent case, file in del Rio and you’re 100% guaranteed to get him. Garcia only fixed what became a problem for him, rather than the problem of judge shopping which he effectively protected outside one judge for one type of case.

        When I see people discussing the Senate’s filibuster, I’m frequently struck by them missing how much individual senators enjoy the filibuster for their own sake rather than anything on behalf of their constituents.

        And this order makes me wonder if I’m missing how much individual judges might enjoy Judge shopping.

        1. 1.1.1.1

          “When I see people discussing the Senate’s filibuster, I’m frequently struck by them missing how much individual senators enjoy the filibuster for their own sake rather than anything on behalf of their constituents.”

          Otherwise known as “corruption.”

          1. 1.1.1.1.1

            It should not be lost on anyone that Malcolm’s feelings of “corruption” only find their voice when the Ends are not what he desires. He is quiet when those SAME Means result in Ends that he likes.

          2. 1.1.1.1.2

            Actually, the senate was supposed to be the more deliberative branch. Requiring 60 votes is a good thing. It forces discussion and compromise, instead of being a matter of who has a simple majority.

            Sometimes you are on the winning end, other times not.

            1. 1.1.1.1.2.1

              Requiring 60 votes… forces discussion and compromise…

              Does it? The filibuster has been invoked much more often in recent decades than has historically been common. Have we seen correspondingly more compromise in recent decades?

              1. 1.1.1.1.2.1.2

                The filibuster is threatened more but that is quite a bit a function of the change in the filibuster itself iirc, and the makeup of the congresses that it’s being used in these days. As to the compromise amount happening I would say it may well be likely that we have seen more compromise in things that are not in the current moments hot topics.

                1. I think the Senate reflects the same polarization as the country. People are less tolerant of opposing views.

                2. Thanks PM,

                  Certainly there is much polarization, but I would tend to view the Senate as not necessarily reflective of the larger population (in part, because the actual state of polarization is likely different than the state projected by Mainstream Media).

        2. 1.1.1.2

          struck by them missing how much individual senators enjoy the filibuster for their own sake rather than anything on behalf of their constituents.

          It’s worse than that: rather than “for their own sake,” how about for their party’s sake (Both “D” and “R”).

          George Washington’s aversion to political parties was well founded.

        3. 1.1.1.3

          If I’m missing how much individual judges might enjoy Judge shopping

          Albright didn’t hang out his shingle for nuthin’ He was on a mission.

          As to political parties: there can’t be a functional democracy without them. Choosing your leaders does not start with elections. Elections are the end result of the democratic process, which is predicated on freedom of association.

          1. 1.1.1.3.1

            Another thing that you know nothing about, marty – certainly a functioning democratic process does not require political parties. Such have NO bearing as a determinative of freedom of association.

          2. 1.1.1.3.2

            As to, “He was on a mission.

            Maybe that was like the (non-renewed) Congressional “build a bench with patent law expertise for a few select judges” mission.

            Oopsie.

          3. 1.1.1.3.3

            “As to political parties: there can’t be a functional democracy without them. ”

            link to i.kym-cdn.com

          4. 1.1.1.3.4

            “He was on a mission.”

            It’ll be very interesting to see if he’s still on the bench in 5 years.

            1. 1.1.1.3.4.1

              Why would you think he not to be?

              Is that merely wishful thinking?

        4. 1.1.1.4

          > People can still Judge shop for other civil litigation in Waco.
          > And if you want judge Moses for a patent case, file in del Rio and
          > you’re 100% guaranteed to get him [sic; her].
          > Garcia only fixed what became a problem for him, rather than
          > the problem of judge shopping which he effectively protected
          > outside one judge for one type of case.

          There was no flood of patent cases being filed in Del Rio or any other division in W.D. Texas outside Waco, so you cannot fault Judge Garcia for not addressing a non-existent problem. If you start seeing concentrated patent filing in the Del Rio Division, or some other division, you can bet that Garcia will expand this order district-wide.

          1. 1.1.1.4.1

            Fair point.

          2. 1.1.1.4.2

            That’s called treating the symptoms rather than the disease.

            In any case, as someone who disapproved of the Albright situation, it seems more principled to take this momment to ask for a resolution to judge shopping at large rather than sitting back and enjoying Albright’s defeat. To each their own.

            1. 1.1.1.4.2.1

              It can be simultaneously true that: (1) the U.S. judicial conference should lay down a nationwide rule to address judge-selection; and (2) that the chief’s narrowly tailored solution to the precise problem immediately presented in WD Tex is fine by itself.

            2. 1.1.1.4.2.2

              it seems more principled to take this momment to ask for a resolution to judge shopping at large” [sic]

              You are jesting, right? How much flack has been given to forum shopping to anti-patent (home) courts (of Efficient Infringers)?

              That’s just not a narrative that will get press (Mainstream Media style)

            3. 1.1.1.4.2.3

              > In any case, as someone who disapproved of the Albright
              > situation, it seems more principled to take this momment
              > to ask for a resolution to judge shopping at large rather
              > than sitting back and enjoying Albright’s defeat.
              > To each their own

              I am curious what you think the “cure” to this disease would be. There isn’t any one-size-fits-all resolution you could adopt that would not have undesired side effects, as judicial assignments are a result of a confluence of numerous factors and the interplay of many statutory, common law, and local court rules.

              Judge shopping (and more generally, forum shopping) has been an issue ever since there have been just enough courts and judges that filing parties could make choices impacting their ultimate judicial assignments. The real “cure” for judge shopping is for judges to consistently enforce venue and reassignment rules.

              This is why forum shopping and judge shopping rarely get out of hand, because most judges conscientiously apply the rules to move or transfer those cases filed in their courts that simply don’t belong there. For example, if you tried to forum shop by filing a tort suit in the El Paso Division based on an accident that occurred 500 miles away in Austin, the El Paso judge will very likely transfer that case to the Austin Division where it should have been filed.

              Forum and judge shopping get out of hand only when judges refuse to apply those rules and/or encourage such behavior, which is what you saw in Waco. It’s difficult to justify new judicial assignment rules applying to all judges, simply to address one or two bad apple judges. Judge Garcia’s order reflects proper restraint by addressing a bad apple without chopping down the tree or the entire forest.

              1. 1.1.1.4.2.3.1

                LR,

                While you state, “that filing parties could make choices impacting their ultimate judicial assignments. The real “cure” for judge shopping is for judges to consistently enforce venue and reassignment rules.

                You glibly overlook the fact that patent rights are Federal rights – reaching to Every US jurisdiction.

                The problem has been the propaganda of the Efficient Infringers twisting those ‘venue and reassignment rules’ to arrive at a tortured situation in which the (alleged) transgressor fully takes the benefit of business in a location that they want to shirk the responsibility of suit in that same place.

                1. Nah. In the vast majority of patent cases filed in Waco, the plaintiff has no connection to Waco and the defendant has no employees, facilities or operations in Waco. When the only conceivable connection to Waco is the fact that a few accused products happen to make their way into the hands of Waco customers (who would never be witnesses anyway), that’s a pretty good sign that the case really should have been filed somewhere else.

                2. Nonsense.

                  In the hands of customers MEANS that the alleged infringer is taking the benefit of business there (just like I said).

                  You do remember that patents are a FEDERAL thing, right? As in, they apply everywhere in the Sovereign (and in some cases even outside of the Sovereign). This is just not like the examples you offered.

                3. >In the vast majority of patent cases filed in Waco, the plaintiff has no connection to Waco and the defendant has no employees, facilities or operations in Waco.

                  Compare/contrast Delaware for corporate law. The vast majority of companies / cases there have no connection to the state (e.g., no employees, operations, etc), yet everyone goes there because it’s famous for its high-quality legal system. See also London for international commercial law.

                4. > You glibly overlook the fact that patent rights
                  > are Federal rights – reaching to Every US
                  > jurisdiction

                  Anon, I was going to ignore your “federal” point because it seemed a little silly, but you keep bringing it up, so may as well address it.

                  What possible difference does it make that patent rights are federal rights? How does that justify concentration of 25% of one category of cases, before one judge?

                  There are more than 650 federal trial judges strewn throughout districts throughout every corner of the United States, precisely so cases involving “federal” claims can be heard in convenient venue that has a relationship to the parties–in other words, to avoid artificial clustering of any particular type of civil case in a single (inconvenient) location. Otherwise you could just place all federal trial courts in D.C. and be done with it. If you’d lay down your myopic view and patent law exceptionalism for a moment, you’d realize that patents are not any more uniquely “federal” than copyrights, securities, social security benefits, bankruptcy, antitrust, RICO, taxation, immigration, any other civil or criminal case in which the U.S. is a party, or the dozens of other uniquely federal civil disputes heard in courts throughout the United States. The fact that patents are “federal” is a pretty weak justification for clustering and forum shopping in one division, which the federal judicial system was designed to avoid.

                5. Anon, I was going to ignore your “federal” point because it seemed a little silly…

                  Your initial instinct was the correct one.

                6. Aside from Greg’s snide (and off – image that) comment, it very much makes a difference in that the right is a Federal one.

                  This means that it applies IN EVERY US jurisdiction – exactly as I have pointed out. The Plaintiff DOES have a connection – wherever that Federal Right reaches and the Plaintiff has availed itself OF THE BENEFIT of the transgressing behavior.

                  Now, if you want to discuss how the current law is warped in that Benefit/Responsibility determination, sure, we could have a discussion on how my view of what SHOULD BE is not in fact how it is presently carried out.

                  But this does NOT support your assertion that the case really should have been filed somewhere else.

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