West Texas Remained the Top Patent Venue in 2021 as Judge Albright Attracted Further Scrutiny

The Western District of Texas was the most popular venue for overall patent litigation and NPE litigation in 2021 as a whole and in the fourth quarter, holding second place for operating company litigation in both periods. Delaware took second place for both overall litigation and NPEs filings, but held the top spot for operating companies, in both 2021 and Q4. Additionally, the Eastern District of Texas came in third for overall and NPE litigation—again in both periods—but saw the fifth most filings for operating companies, for which the number-three venue was the Central District of California.

As detailed in RPX’s fourth-quarter review and elsewhere, the Western District’s rise to the top of the venue rankings is due to the efforts of District Judge Alan D. Albright, who has openly sought to attract patent cases to his district since taking the bench in late 2018. Judge Albright has done so through outreach to patent litigators, by establishing rules designed to streamline and speed up litigation before him, and by taking a restrictive posture toward certain types of defensive motions—including motions to stay pending the outcome of America Invents Act trials and Alice invalidity motions.

However, perhaps Judge Albright’s most distinctive tendency is his substantive handling of convenience transfer motions, which he has infrequently granted since taking the bench—setting a high bar for defendants seeking that relief. In the summer of 2020, this trend began to draw the ire of the Federal Circuit, which issued a trickle of mandamus reversals that year that became a wave in 2021 as Judge Albright gave increasingly strong signals that he would not adjust his approach. Indeed, by the time the year came to a close, the court had reversed Judge Albright’s transfer rulings on mandamus a full 18 times, with nine of those reversals occurring in the fourth quarter alone.

Judge Albright’s handling of convenience transfers, as well as his outreach to plaintiffs and the resulting rush of litigation, have also attracted the attention of Congress. On November 2, Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) wrote to Chief Justice John Roberts, in his capacity as presiding officer of the Judicial Conference of the United States, complaining that Judge Albright’s work to attract patent cases was “unseemly” and decrying the “extreme concentration of patent litigation in one district” that has resulted. They also raised concerns over his district’s divisional filing rules that permit plaintiffs to file directly in their desired division—which allows litigants to effectively pick a judge when the division has just one (as is the case in Waco with Judge Albright). The senators asked for a study on abuses of this practice.

On December 15, at the direction of Chief Justice Roberts, Eastern District of New York Judge Roslynn Renee Mauskopf responded to the senators in her capacity as director of the Administrative Office of the United States Courts, stating that the Judicial Conference “strongly supports” random case assignments and informing them that the Committee on Court Administration and Case Management would study the issue further. Chief Justice Roberts then addressed the issue in the Supreme Court’s 2021 Year-End Report on the Federal Judiciary, writing in part that judges could “work in partnership with Congress in the event change in the law is necessary”.

See RPX’s fourth-quarter report for more on Judge Albright, additional developments related to patent venue, and a deep dive on other trends impacting patent litigation and the patent marketplace.