By Paul R. Gugliuzza and J. Jonas Anderson
In the past few weeks, more and more people outside of patent law have learned about ‘judge shopping’—quirks in procedural rules that allow plaintiffs to pick not just a court but the individual judge who will hear their case.
Republican state attorneys general and conservative activists have been exploiting those rules to challenge federal government policies on abortion, immigration, gun control, transgender rights, and more in front of sympathetic, Republican-appointed judges, primarily in Amarillo and Wichita Falls, Texas.
Last month, the Judicial Conference of the United States (a group of judges who oversee the operation of the federal courts) issued a new policy urging courts to adopt case assignment procedures that prevent judge shopping, especially in cases challenging federal law.
Predictably, the beneficiaries of judge shopping—namely, Republicans—decried the new policy as politically motivated and urged district courts to ignore it. Democrats, for their part, demanded that the chief judge of the district encompassing Amarillo and Wichita Falls (the Northern District of Texas) adopt new case assignment rules right away. The chief judge promptly refused to make any changes, citing a “consensus” among the district’s judges—ten of eleven of whom were appointed by Republican presidents.
To anyone just learning about judge shopping, it might be surprising to see the likes of Mitch McConnell and Chuck Schumer sparring over arcane rules of judicial case assignment.
For patent lawyers, however, controversy over judge shopping is nothing new. For more than a decade, the Eastern District of Texas—particularly its Marshall division—was the capital of U.S. patent litigation, due largely to case assignment rules that allowed plaintiffs to essentially pick their judge.
At any given time, Judge Rodney Gilstrap would receive 90% or 100% of patent cases filed in Marshall. By 2015 and 2016, Judge Gilstrap was hearing over a quarter of all patent cases filed nationwide—more than a thousand per year.
After the Supreme Court’s 2017 decision in TC Heartland made it harder for plaintiffs to file in the Eastern District, the Western District of Texas—specifically, its Waco division—took over. Judge Alan Albright was appointed to that court in 2018, and he openly encouraged plaintiffs to file patent cases in his courtroom. By 2021, Judge Albright, like Judge Gilstrap before him, was receiving nearly a thousand patent cases a year.
In the summer of 2022, the Western District changed its case assignment system. No longer would Judge Albright receive every case filed in Waco. Instead, patent cases filed in Waco—and only patent cases filed in Waco—would be assigned randomly among roughly a dozen judges scattered throughout the Western District.
The Western District’s order significantly changed where patent cases are filed, both in the district and nationwide.
In 2023, Judge Albright received 207 patent cases. That was still more than any other judge in the Western District. (Despite the new order randomly assigning Waco patent cases district-wide, many cases filed in Waco in 2023 were assigned directly to Judge Albright because they were related to cases already pending before him or that he had previously handled.)
But Judge Albright’s 207 cases represented only 40% of the patent cases filed in the Western District. That was a huge decrease from 2021, when Judge Albright received 931 patent cases, representing a whopping 94% of patent cases filed in the Western District.
Nationwide, in 2021, Judge Albright received nearly a quarter of all patent cases (931 out of 4,005). In 2023, he received fewer than 7% (207 out of 3,123). So far in 2024, he’s received a little under 10%.
And the Western District, in 2021, received 25% of all U.S. patent cases. In 2023, it received only 17%. So far in 2024, the Western District’s share is down to 13%.
In short, Judge Albright’s patent caseload has dropped by about 75% and the Western District’s has fallen by half.
So, judge-shopping problem solved?
If history tell us anything, that’s unlikely. Patent litigants are sophisticated. And in patent cases the stakes are high, meaning that everyone seeks any advantage they can get.
Moreover, as we’ve written in a series of law review articles, judges have ample incentives to bring cases into their courtrooms: being known as the judge in a specific area of law brings fame and notoriety; a large number of new cases brings economic benefits to the local bar, community, and even the judges themselves; and the ‘expert’ reputation the judge develops can bring lucrative career opportunities when the judge steps down from the bench.
More likely, then, judge shopping in patent cases is simply entering a new era. Which raises the question: where are the judge shoppers going?
Early indications point in two directions.
First, many judge shoppers are going back to Judge Gilstrap in the Marshall division of the Eastern District of Texas. After TC Heartland and Judge Albright’s appointment, Judge Gilstrap’s share of nationwide patent cases fell to barely 6% in 2019 and 2020. But Judge Gilstrap’s share has tripled since then. So far in 2024, he’s received nearly one out of every five patent cases filed nationwide.
Second, patent judge shoppers seem to be heading further west in the Western District of Texas, to the Midland-Odessa division. In that division, every civil case is assigned to Judge David Counts—just like Judge Albright who, not long ago, received every civil case filed in Waco.
Before November 2023, Judge Counts had received fewer than ten patent cases since taking the bench in 2018. In the last six months, however, he’s received 23, including 19 so far in 2024. That’s nearly 20% of all patent cases filed in the Western District this year—quite an increase from the 1.3% and 0.3% he received in 2023 and 2022, respectively.
And those 23 cases were all directly filed in the Midland-Odessa division—they were not filed in Waco and then randomly assigned to Judge Counts. (Recall that the Western District’s July 2022 order randomly assigning cases applies only to patent cases filed in Waco.)
Most of the 23 cases before Judge Counts were filed by prolific patentee attorney, William Ramey. Whether other patentees follow Ramey’s lead remains to be seen.
But Judge Counts has adopted many of the procedural practices used by Judge Albright. As we’ve argued, those procedural practices are favorable to patentees and were crucial to enticing patentees to flock to Waco. Judge Counts also refers many cases to Magistrate Judge Derek Gilliland—the magistrate hand-picked by Judge Albright.
* * *
It’s commendable that the Judicial Conference, politicians, and the media are paying attention to judge shopping. It’s a serious problem, and it’s wildly unfair to allow one party to handpick the judge for a case. The Eastern and Western Districts of Texas should immediately change their case assignment rules so that judge shopping is not possible. But the problem won’t fully be solved until random assignment is required in all cases in all districts nationwide.
Methodology note: The data reported in this article was compiled using Docket Navigator and is current through March 31, 2024.
Paul R. Gugliuzza is Professor of Law at Temple University Beasley School of Law
Jonas Anderson is Professor of Law at the University of Utah S.J. Quinney College of Law
“The chief judge promptly refused to make any changes, citing a “consensus” among the district’s judges—ten of eleven of whom were appointed by Republican presidents.”
Based
Well . . . can we at least all agree that many — likely something north of 50% — are actually grateful for those of their colleagues willing to embrace patent cases . . . so that they can concentrate on those types of cases they actually enjoy handling?
Patents are the sport of kings, but pharma has nothing to do with that. When was the last time we saw an article on a micro entity inventor getting their patent and being able to assert it in their (literally) hoe town court? What micro entity has the money to do that?
Sorry for the duplicative response. This was in response to comment 2.3.1.1.2.1.1
Well, our original intent was expressly to have a patent system that was not a Sport of Kings.
So, there is that.
? It was always a sport of kings. Even before Ely Whitney invented the most commercially and societally impacting U.S. invention in history, the cotton gin, and tried to enforce his patent.
Wrong – oh, so very wrong.
Criminy…
Please Pardon Potential re(P)eat….
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April 9, 2024 at 10:07 am
Wr0ng – oh, so very wr0ng.
The underlying problem, which these Woke professors don’t address, is that patent law has become fragmented and is no longer grounded in reality. This means that the judge you get is very important because the judge can pretty much decide anything they want under 101, 112, and 103. There is no law but decisions by the Scotus and CAFC that enable raise the judge up as the sovereign who may decide anything.
Thank the lowlife on the CAFC for this problem.
I highly object to paying the salaries of these political activist “professors.”
We need to defund the universities. Wipe it clean and start over. We don’t need people who will lie and mischaracterize the facts for their political ends.
These people are by no means professors.
Cancel culture!
LOL
Well, 6 might like this (the Rock certainly smells something rotten in Cancel land):
link to youtu.be
Saw it. Tho I think it’s more like the Rock just doesn’t want to be involved politically atm for his brands. Still every little bit helps, and the bro vote should be 100% trump.
Not the US, but this is definitely a Sprint Left Cancel Culture of recent vintage:
link to open.spotify.com
Oh if you like that one, there’s always the whoopsie our studies can’t be replicated independently. Which of course they can’t be.
link to youtube.com
Saw that – wasted on those that refuse to accept what Dr. Lyndsay had provided in much more rich detail (with original sources).
I highly object to paying the salaries of these political activist “professors.”
Those who live in Pennsylvania are paying (an infinitesimally small portion of) Prof Gugliuzza’s salary. Those who live in Utah are paying (an infinitesimally small portion of) Prof Annderson’s. The rest of us are not paying any of their salaries.
Meanwhile, I am old enough (i.e., I am more than 3 years old) to remember when “cancel culture” was a “woke” excess and a grave threat to our culture. I gather, however, that this particular moral panic has subsided?
Certainly – the likes of Dr. Lyndsay and push back have made it a bit passé.
And just as certainly, such does not mean that it was a very real thing.
“ the likes of Dr. Lyndsay ”
aka “wingn u t hacks”
Speaking of hacks – what is your position on the Israel/Hamas fiasco?
Haven’t figured out how to read your script on that one yet?
Oh, my oh my, how fast did Malcolm disappear.
Like ‘magic.’
How about this ISM as a “moral panic?”
link to youtube.com
[P]atent law has become fragmented and is no longer grounded in reality. This means that the judge you get is very important because the judge can pretty much decide anything they want under 101, 112, and 103.
I broadly agree with your premise here, but this cannot explain the flocking to ED & WD Tex. Neither Judge Gilstrap nor Judge Albright is especially less likely than the median U.S. district judge to hold an asserted patent invalid.
They are though going to get a more balanced reading of patent law.
As you are (likely?) aware, non-close cases tend to settle.
I think anon’s point is right. Gilstrap and Albright are more likely to be fair and try to apply the law rather than use one of the many ways the CAFC and Scotus have set up to invalidate claims.
Bingo! Were all judges as fair and reasonable to inventors and patent owners, patent cases would be spread evenly (or close to) across the federal judiciary.
But because they’re not, they’re not.
“I broadly agree with your premise here”
There is no defensible “premise”, you p a t h e tic simp. The most gaping “unreality” infecting the system is the myth that logic has patentable structure. The second greatest “unreality” is the myth that progress in identifying facts and correlations will be improved by handing out twenty year monopolies on those “discoveries.” You are in favor of both these myths! So you lie down with the Grandpa Droolbucket. Just stop.
Who could fail to be convinced by such a persuasive presentation of the case?
Hey, you’re the one who thought Gramps’s shovel needed assistance. Tell everyone the “premise” that you referred to in your comment and tell everyone your own reasons for adopting that “premise”.
So your apoplectic rant was, what, just because?
MM (“The Prophet”), it is not logic but information processing. The same thing you do when you respond to my posts. As AI gets more and more functionality and we have self-driving cars and computers assisting everyone with their information processing tasks, I would think that you would reconsider your views.
Not sure what is wrong with being a grandfather. It is fine.
He does not “Gist” that way.
Radical idea: create a nation set of district courts that only handle intellectual property cases similar to a court of claims. The judges can be specially trained and staffed with judges with a technical background. The patent cases can still be randomly assigned. However, the judges should be randomly assigned to various districts amongst the states. For example: you could have a pro-patent judge presiding over a case in a pro-infringer jurisdiction and pro-infringer juries thus balancing out the biases. Just an idea.
We need to get the IP system right because approximately 90% of the US economy is based on IP rights. Lets not focus on our special interest and work to get a system that is functional.
Note: I wish to apologize to Prof. Jason Rantanen, Paul R. Gugliuzza and J. Jonas Anderson on behalf to the IP community regarding the personal attacks which were uncalled for. It is legitimate to argue about the content of the article but not professional to attack the authors or the academic community in general. It is hard to understand the needs of patent system without having had experience working in prep and pros, examination, litigation, and adjudication because the subject matter is too complex for a single viewpoint. Respectful discourse is needed to parse through the complications of the IP system; not personal attacks.
Blah blah blah.
I will “admit” to ‘uncalled for’ when the Academia writ large behaves in an ethical manner – that is, being descriptive as opposed to being prescriptive.
Your “apology” is uncalled for until that time.
Aren’t these the same professors that claimed that the percentage of black students graduating law school is the same percentage as in the population? A clear lie. And, then they used this logic to claim that the top litigation firms were r*cist because they didn’t have the same percentage of black lawyers. The CRT argument of Kendi that if blacks are lower than their percentage in the country, then it MUST be due to racism.
Just bizarre that political posts are now permitted on here.
In fact, even Hillary Clinton said that the disadvantages black people suffer all happen before they are 12.
But virtue signaling is a must.
As long as they can do it from Martha’s vineyards, what’s the harm?
/s
“Just bizarre that political posts are now permitted on here.”
Nothing bizarre about it. It’s a blog about laws, which are passed by elected politicians and enforced by administrators and judges who are appointed by those elected politicians.
What’s “bizarre” is your extreme and shameless hypocrisy. You spent YEARS here, Gramps, sp ewing nonsense about “Obama judges” and comparing critics of software patenting to t e r r 0 r i s ts so please change your Depends and get a life.
Speaking of politics and hypocrisy, Malcolm, it is amazing that you have not recited your script on how you view the Israel/Hamas debacle.
Have you not figured out how you “feel” about this yet? You’ve not been shy about sharing your other feelings – so why for this issue, you cannot find your tongue?
Please Pardon Potential re(P)eat…
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April 7, 2024 at 1:24 pm
Speaking of politics and hyp0cr1sy, Malcolm, it is amazing that you have not recited your script on how you view the Israel/Hamas debacle.
Have you not figured out how you “feel” about this yet? You’ve not been shy about sharing your other feelings – so why for this issue, you cannot find your tongue?
The article says:
> It’s a serious problem, and it’s wildly unfair to allow one party to
> handpick the judge for a case. The Eastern and Western Districts
> of Texas should immediately change their case assignment rules
> so that judge shopping is not possible
This statement ignores the key reason these single-judge divisions were created in the first place–to provide convenience and service to local residents. The Eastern and Western Districts in Texas cover huge geographic areas, with multiple divisions having courthouses separated from each other by potentially hundreds of miles. The Western District, for example, has seven distinct divisions, which were strategically defined on a geographic basis in 28 U.S.C. 124.
The statutory purpose of having multiple divisions within a single district would be defeated if a local resident, upon filing suit, could automatically have their case randomly reassigned to another division that’s potentially hundreds of miles away. The authors state:
> But the problem won’t fully be solved until random assignment is
> required in all cases in all districts nationwide
The truth is that you simply cannot eliminate the possibility of litigants being able to effectively “pick their judge” without also eliminating the convenience and utility of these smaller, locally-based federal divisions that may have only one or two judges. The authors do not appear to acknowledge this trade-off.
There are of course situations where random district-wide assignment may be appropriate for specified categories of civil cases to avoid concentration in one division, which is what the Northern District of California did decades ago in response to most patent cases being filed in the San Jose Division. But the authors here do not appear to propose any such limitation on their proposal. Their assumption that small local federal divisions are inherently bad, and serve no purpose other than judge-shopping, ignores the convenience benefits these divisions have long provided to local residents.
That’s because they already have a desired Ends.
The Means do not matter to them.
> That’s because they already have a desired Ends.
> The Means do not matter to them
But that’s just sloppy and lazy thinking. I am amazed at how many posts in these comments make no attempt to engage with the authors on the merits of their positions, and simply disregard them based on political or partisan tribalism. Saying that someone has an “agenda” is a fair point, but that assertion by itself doesn’t do anything to undermine the argument.
Sure it does.
That they have an agenda makes everything that they say suspect.
Except they mischaracterize reality and lie about statistics.
Thinking outside the box — we could appoint a few more district judges, even if those judges weren’t fully utilized all of the time. If nothing else, the plan would greatly improve “access to justice” metrics for a ridicuously small amount of money.
That said, it would be tricky to there given the appointees’ obvious political power.
These are fair considerations, LR. Whatever solutions are arrived at they should take into account (and protect) the rights of citizens who reside in the district to file a Federal case in that district (if they meet the other qualifying criteria).
The problem being discussed here (with nods to related issues) is quite specific to the patent system. It’s game-playing with the Federal justice system taken to the next level by a small, specialized group of attorneys and Federal judges who are interested in one thing and one thing only: power and money for themselves. They don’t care about the public, and they don’t care about the rest of the country or the fact that any normal objective person who looks at the facts will be disgusted by their behavior. It’s just Texas being Texas and it’s no surprise to see the cultists here piling on with the usual ridiculous, paranoid, projecting nonsense about communist plots and br@inwashing by lawschool professors (all of these law schools are biased and corrupt, of course, except for the ones associated with the oh-so-unfairly persecuted legal genius John Eastman).
The statutory purpose of having multiple divisions within a single district would be defeated if a local resident, upon filing suit, could automatically have their case randomly reassigned to another division that’s potentially hundreds of miles away.
1) This is a good point. Thanks for raising it.
2) Still and all, it really is not fair for a plaintiff (or a defendant) to be able to pick the judge. If the convenience of the litigants is the motivating factor here, it seems to me like it should be possible to allow a plaintiff to file in (e.g.) Amarillo or Waco and have their cases tried in that court house, but still have the judge assigned randomly from across the district.
After all, as has been noted, Judge Albright sits regularly in both Waco and Austin. Federal judgeships are prestigious and sought-after jobs. It should not be too hard to find people who would be willing to travel among different court houses in a given district if that is the price necessary to get the job.
Dozens says:
> Still and all, it really is not fair for a plaintiff (or a defendant)
> to be able to pick the judge. If the convenience of the litigants
> is the motivating factor here, it seems to me like it should be
> possible to allow a plaintiff to file in (e.g.) Amarillo or Waco
> and have their cases tried in that court house, but still have
> the judge assigned randomly from across the district
Let’s be honest here, this supposed “pick the judge” problem you identify has existed for hundreds of years in the United States.
There are hundreds of courthouses across state and federal jurisdictions in the United States that are effectively single-judge courts where, if you file there, you effectively “pick” the judge simply because there is no one else to whom the case can be assigned. In jurisdictions that are more sparsely populated, that’s simply the way the courts have worked throughout the history of the United States. And because most cases aren’t politically charged, and the vast majority of judges do take their duty of impartiality seriously, “judge shopping” by filing in single-judge districts has not been a big cause for concern or resulted in unfair treatment of any particular class of litigants.
You could certainly design a system in which judges from other divisions within the district were required to rotate in and hear cases filed in the remote division (e.g., Waco, Amarillo, etc.), but to be honest, that is historically a step backwards. The federal court system in the U.S. used to have federal judges traveling to various remote courthouses within a circuit, a practice known as “riding circuit” that was abolished once there federal judges were assigned to these remote divisions. Your proposal would effectively bring back circuit riding, which would create other problems and inefficiencies; the other judges have their own caseloads in their home divisions, and the necessity of constant travel back and forth to the remote division by the judge, law clerks, court reporter, and other stuff, to hear cases filed there there will cause delays in both divisions, especially in trial scheduling which would often require multi-day stays.
There is no evidence that in the majority of garden variety civil cases filed in federal courts, the “judge shopping” issue with single-judge divisions is a big deal. I think the better solution, if you identify a class of cases where you think abusive judge shopping is occurring, is to target that class of cases for random reassignment (e.g., patent cases, constitutional challenges), rather than randomly reassign all civil cases in these remote divisions and thus destroy the convenience they were created to provide.
Sure, fair point. The judicial conference’s solution was to have random assignment only in cases with nationwide injunctive effect. That is (or at least would have been) a fairly light-touch adjustment. Maybe the light touch is the better part of wisdom.
Saying the quiet part out loud:
“only in cases with nationwide injunctive effect.”
(but nooooo, there is no anti-patent sentiment running amuck
)
The light touch would be to come out against nationwide injunctions.
Re: “The light touch would be to come out against nationwide injunctions.”
Indeed, especially, injunctions by a single D.C. Judge against the federal government or otherwise impacting the majority of citizens of most states. Especially if based on highly disputed scientific “evidence”.
And/or, precluding such injunctions going into effect until their appealed decision.
The question is, how could that be accomplished? [Clearly not by the circus Congress has turned into. ]
The express specific statutory provision for nation-wide injunctions for patent infringement should not be affected by a more general restriction on immediate nationwide injunctions, under the normal statutory interpretation rule that the more specific statute not removed should control. Just as the Sup. Ct. had unanimously overruled the erroneous CAFC decision to overrule the specific patent venue statute based on a change in the general venue statue.
Yes, but the judge-shopping issue here is not about “local residents hundreds of miles away” in low population areas, it is almost entirely about non-local residents thousands of miles away being sued somewhere “West of if the Pecos” in patent cases? Which also leads to the question of why is this problem so unique to Texas? As noted above, it is apparently not their win-loss record in patent cases, unlike other patent judges in Texas on political issues.
I have a comment in the filter making these same points. To the extent normal Texas citizens with legit Federal cases might be impacted by whatever solutions are implemented to address the judge shopping by patentees, those citizens’ conveniences can certainly be addressed.
> Yes, but the judge-shopping issue here is not about “local
> residents hundreds of miles away” in low population areas
Read the article. The authors’ proposal expressly calls for “random assignment [to be] required in all cases in all districts nationwide,” without exception. And that would, as written, cause suits filed by local residents, even with no history or issues with judge shopping, to be potentially reassigned hundreds of miles away. I don’t have a problem with dealing with particular classes of cases where there is demonstrated patterns of abuse or judge shopping, but that’s not the proposal the authors have outlined here.
“ The authors’ proposal expressly calls for “random assignment [to be] required in all cases in all districts nationwide,” without exception.””
That last bit isn’t a quote from the authors, is it? Do you think they are going to die on that “without exception” hill if their other issues are addressed and if a reasonable accommodation can be made to address the issue you raise?
“That last bit isn’t a quote from the authors, is it?”
Ipsis verbis is not required – now is it?
Ipsis verbis is not required, is it?
Lazy federal judges wjo disregard the 7th amendment created the patent forum shopping phenomenon. Plaintiffs just want a speedy trial, and very few judges will provide that.
It is not that hard to find a federal judge who actually gives speedy Trials in patent cases, and interestingly they are NOT a judge in Texas with a large docket of patent cases.
Seriously. If Plaintiffs wanted speedy trials, they’d file in ED Va. But ED Va will transfer cases, actually do claim construction, and grant MSJs.
Gilstrap and Albright don’t do those (claim construction under Albright/Gilliland is a complete clown show), which is why Plaintiffs file cases in Marshall/Waco.
Of the matter were merely a specific aspect being “a complete clown show,” why is not that these aspects are directly being sought to be changed?
Because it takes years for cases to percolate through the appellate process and someone has to be willing to risk a trial to get the Fed Cir to smack down Albright.
There aren’t that many cases where a defendant is willing to take that kind of risk.
Looks like one in the filter…
Risk? You would think that at that point the marginal cost/risk equation would swing wildly the other way.
(iow- not buying what you are trying to sell)
Thank you for this excellent, well-researched article. The recommendations at the end should be heeded.
Note the problem is not that all the patent cases go to one judge and is not just that the litigants can choose their judge, but that the judge shapes his (and potentially her) policies and rulings to attract cases of a particular type (i.e., patent-related) and tend to rule in favor of one particular type of litigant (the patentee).
That said, at least wrong with our patent system favors the patentee, whereas most of the things wrong with the system seem to favor the infringer.