Initial Dip After West Texas Judge Assignment Order Shaped by Outlying Plaintiff Behavior

RPX’s third-quarter report takes a close look at the Western District of Texas order designed to funnel patent litigation away from the nation’s top patent judge, Alan D. Albright—revealing that the new rule has had less of an impact than some had expected. In particular, data on West Texas NPE litigation filed from the order’s July 25 issuance date through the remainder of Q3 show that after an initial 21-day slowdown, NPE activity largely rebounded, with plaintiffs mostly closing the gap by September 30.

That initial slowdown is more pronounced when accounting for the shifting venue strategy of prolific patent monetization firm IP Edge LLC, which has long accounted for 25% of all NPE litigation. In contrast to many NPEs, IP Edge has not concentrated its filings in the Western District of Texas since the rise of Judge Albright—possibly as a result of his more aggressive scheduling practices.

Yet IP Edge began to do the opposite around the time other NPEs were pausing their West Texas assertions, filing more litigation in that district (perhaps hoping, under the new assignment rule, to avoid getting Judge Albright)—and filing markedly less litigation in its preferred venue of Delaware, where it has faced pressure from the heightened disclosure rules imposed by Chief Judge Colm F. Connolly in his courtroom.

Excluding IP Edge and its uncharacteristic increase in West Texas filings, the plateau in NPE activity in the wake of the judge assignment order actually lasted about 45 days. Again, though, a surge following that lull significantly narrowed the gap between 2021 and 2022 by the end of the third quarter.

See RPX’s third-quarter review for more on the impact of the West Texas judge assignment order, Judge Connolly’s disclosure requirements, and other key patent litigation and marketplace trends.