Waco may be Heating Up Again this Winter

by Dennis Crouch

Waco Texas has been a hot spot for patent infringement litigation over the past several years.  We all love “Fixer Upper”  and Baylor.  But, the Waco difference for patent cases is Judge Alan Albright. Judge Albright is a former patent litigator appointed to the bench by President Trump in 2018.  Everyone loves having a patent-knowledgeable judge and there are no  clear statistics suggesting that Albright unduly favors patentees.  However, Judge Albright is now predictable in his approach and has a “get-the-case-to-trial” focus that plaintiffs love.  Defendants often prefer to spend more time on dispositive motions — hoping to throw-the-case-out before trial.  In addition Defendants often prefer to stay litigation pending patent office IPR review.

Judge Albright is the only Federal judge in Waco, and that has made a big difference.  And, Under traditional WDTex rules an action filed in Waco will be heard by Judge Albright.  This is quite different from other courts that have multiple judges with random assignment of new cases.

Garcia Order I: Back in July 2022, Western District of Texas Chief Judge Orlando Garcia issued a major order shaking up the rules of judicial assignment.  In particular, the order states that new patent cases filed in Waco will be randomly distributed among 12 different WDTex judges.  This change somwhat slowed down new-case filing in Waco.  Cases have been distributed among the judges, although Judge Albright continues to receive about half of the new cases.  Most of the rest have been assigned to Judges Judge Pittman, Garcia, Yeakel, and Rodriguez.

Garcia Order II: In November 2022, Judge Garcia took Senior Status and stepped down from his role as Chief Judge. A few days before stepping down, Garcia issued a new order that does not expressly mention patent cases, but does indicate that Judge Albright will be assigned “[a]ll cases and proceedings in the Waco Division.”  On its face, the new order seems to overrule Order I, but that remains unclear.  The New Chief Judge Alia Moses will need to clarify.  I will note that some of the cases assigned to Chief Judge Moses under the Garcia I order have already been transferred back to Judge Albright.

The Garcia II order took effect on December 1, 2022.  Since then, 18 new patent infringement lawsuits have been filed in  W.D.Tex. (Waco) (according to PACER) with the following assignments:

  • 13 are assigned to Judge Albright
  • 2 are assigned to Judge Yeakel (these are related, both filed by Vilox).
  • 3 are not yet assigned to any judge.

These results suggest Garcia II has changed the game and that Judge Albright will be receiving the bulk of the patent docket going forward.  We’ll be looking for a more positive statement from the court, but those tend to be rare. 

= = =

Seriously, I don’t have HGTV at my house, but whenever we travel, my wife and I often just lay in the big hotel bed and watch Fixer Upper.

8 thoughts on “Waco may be Heating Up Again this Winter

  1. 3

    The rumor is that the clerk has already clarified that this order does not undo the prior patent case assignment wheel for Waco cases.

  2. 2

    Really, Dennis? The divisional standing orders are just the common breakdown for all judges in the first instance, are regularly updated, and don’t supercede another order that is posted. You can point to cases filed since then that it applied to. You’re creating a tempest in a teapot.

    The real story is that it probably doesn’t matter nearly as much as people would otherwise want to say. Other districts have been assigned, at most, six or seven other complaints, normally with a lot of redundancy (same defendants). Judge Counts adopted the same local rules, and other judges have been reassigning cases to Judge Albright’s Magistrate judge for all pretrial matters (read: for everything, unless it’s one of the 17 or so cases out of thousands of patent cases filed that go to trial). Judge Albright is on the record noting that. A lifetime appointment means lifetime—no one order was going to completely upend that. And with Judge Yeakel retiring, I wouldn’t be surprised if we hear news of a shuffle in terms of districts soon.

    And it’s not true that patent plaintiffs find the court all that certain—just the opposite. If your goal is to go to trial on the merits, and you’re looking for certainty, the rapid-fire discovery rulings cut both ways; I’ve heard funders and others discuss openly how they’d prefer to be in districts with certainty. Now, if your goal is just to create file-and-settle friction—i.e., if unpredictability is your ally—none of that applies.

    In fact, if you take out a few big exceptions (VLSI/Fortress being the obvious one), much of the docket there is legion of file-and-settle stuff that is never intended for trial. The 400+ complaints filed by Bill Ramey comprise almost half the docket this year. There are lots of exceptions, but smart money investors in litigation funding seem to be avoiding the confusion and inconsistency there.

    1. 1.1

      Anyone got a hypothesis why Garcia would implement the first order in July and then reverse course right before the end of his Chiefdom?

      1. 1.1.2

        It is a bit of an overstatement to call the baseless speculation that I am about to proffer a “hypothesis,” but how does this strike you: Judge Garcia was embarrassed when the judicial district for which he is the chief was obliquely singled out for criticism in the Supreme Court’s most recent year end report (pg. 5, col. 1). Therefore, even though he did not want to adjust the district’s procedures for assigning judges to cases, he felt that he was obliged to do so in response to the Supreme Court’s nudge.

        Now that he is retiring, however, it is no longer his embarrassment if the Supreme Court’s compliant goes unaddressed. This leaves him free to restore the district’s operating procedures to the status quo ante (i.e., the procedures that he personally preferred all along). Now he can just leave it to his successor to respond (or not) to the Supreme Court’s obloquy as the successor sees fit.


          I agree that this second order suggests that narrative, but then it also suggests that Garcia rather weakly refused to stand up to mild pressure. That itself seems deeply embarrassing, more embarassing than the original situation! I think someone minimizing embarrassment issues “Garcia I”, and allows their successor to dirty their hands with “Garcia II”.

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