Judge Albright, Still the Nation’s Top Patent Jurist, Pushes Back on Transfer Motions

The top patent judge in Q3 2022, with 11% of new litigation filed in his courtroom, was District Judge Alan D. Albright of the Western District of Texas. As RPX has extensively covered in the past few years, Judge Albright has long been able to attract swells of litigation thanks to filing rules that allowed plaintiffs to file in their preferred division—and, in turn, pick his courtroom by filing in Waco, where he is the only district judge.

That dominance was threatened by a July 25 order from West Texas’s chief judge that distributes all Waco patent cases among a pool of 12 judges, including Judge Albright. Yet the impact of that order has been less than anticipated, as detailed in RPX’s third-quarter report, due in part to the filing of new litigation in existing campaigns—much of which has ended up back in front of Judge Albright, ostensibly due to overlap in the parties and asserted patents.

Defendants in those cases are thus likely to face a familiar set of obstacles, as Judge Albright has become widely known for his restrictive approach to various common defensive motions, including requests to stay litigation pending the outcome of Patent Trial and Appeal Board (PTAB) trials and invalidity motions under Alice. But perhaps the most scrutiny has come from his substantive and procedural handling of motions to transfer for convenience, which has led the Federal Circuit to reverse him on that issue numerous times. One of the appellate court’s most frequent objections has related to timing: After Judge Albright developed a tendency to sit on transfer motions while moving forward on other issues, the Federal Circuit held that venue challenges must be resolved before a court turns to substantive litigation. Judge Albright subsequently modified his general case schedule in response to that pushback to open venue discovery automatically upon the filing of such a motion, often delaying claim construction hearings in order to first decide transfer motions.

In September, Judge Albright began revisiting that practice, issuing a new scheduling framework in an ongoing set of cases after, as he put it, “[p]arties . . . began abusing this process”, “strategically wait[ing] to file their transfer motions to delay the case”. That framework booted the consideration of the defendant’s motions to transfer these cases out of West Texas for convenience to after the close of fact discovery—with claim construction to be considered thereafter, to be informed at that point by full discovery. However, in November, the Federal Circuit overturned the updated framework, ruling that Judge Albright should not have moved forward with other substantive matters before deciding a defendant’s related transfer motions.

More on venue trends can be found in RPX’s third-quarter review, with further coverage of the Federal Circuit’s take on Judge Albright’s recent scheduling practices available on RPX Insight.