West Texas Reforms Trimmed Judge Albright’s Caseload in 2024 as Another Judge Aimed to Fill the Void

The Western District of Texas has slid in the NPE rankings due to case assignment reforms that targeted the former concentration of patent litigation before District Judge Alan D. Albright of the Waco Division, once the nation’s top patent judge. Judge Albright, a former patent litigator who openly sought to attract patent cases to his courtroom, was able to do so with remarkable success as a result of filing rules that let Western District plaintiffs direct their complaints to a specific division, allowing them to pick a specific district judge where the targeted division only has one—here, Judge Albright. The case assignment order changed this by requiring that Waco’s patent cases be randomly allocated among a larger pool of judges, including Judge Albright.

While the district has adopted a policy assigning new cases in existing campaigns to the same judge who oversaw prior suits—meaning that Judge Albright still gets additional filings beyond those randomly assigned to him—the fact that Waco filings are no longer guaranteed to end up before him has undercut the district’s apparent appeal to NPEs.

As a result of these changes, Judge Albright has continued to fall in the rankings of the nation’s top district judges—holding fourth place for 2024, compared to second place in 2023. Since Q2 2024, he has also fallen out of the top five, and his share of the nation’s patent caseload has shrunk each quarter this year—accounting for just 1% in the fourth quarter.

However, the new year could bring significant changes for Judge Albright, who in December confirmed that he will be transferring to the Austin Division to fill one of two vacancies there pending signoff from the Fifth Circuit Judicial Council, which he expects in January. Judge Albright, who practiced as a litigator in Austin, has family in the area, and serves as an adjunct professor at the University of Texas at Austin School of Law, will join District Judge Robert L. Pitman, who has been handling Austin’s patent docket on his own. Commenting on the move, Judge Albright stated that he feels “certain” that Magistrate Judge Derek Gilliland—whom he selected as Waco’s second magistrate judge in 2021 to help handle his then-voluminous caseload—will apply for the soon-to-be vacant district judgeship in Waco, stating that Judge Gilliland would be an “incredibly great person for it”.

Overtaking Judge Albright in the third and fourth quarter, vaulting into third place for Q4, and tying with Judge Pitman for fifth place for the whole year, was Western District of Texas Judge David Counts of the Midland-Odessa Division. The reason for Judge Counts’s rise in the rankings, after seeing virtually no patent cases before the Waco case assignment order was imposed, is twofold. First, Judge Counts, also a former patent litigator, notably adopted a patent standing order based in large part on Judge Albright’s, just one week after the Waco order took effect. Second, Judge Counts is the only district judge in Midland-Odessa, which is not currently subject to any patent case reassignment rules like those in Waco.

This means that plaintiffs have been able to target his courtroom, guaranteeing that their cases will be subject to a familiar set of rules, in the same manner that they previously did for Judge Albright. Indeed, Judge Counts’s caseload doubled compared to last year, accounting for 76 defendants added to patent campaigns in 2024. Nearly all of that litigation (95%) was filed by NPEs, around three quarters of which were represented by prolific plaintiff-side firm Ramey LLP.

That said, the approach that Judge Counts will take for certain key issues is not yet clear. For instance, he has not yet granted any contested motions to stay pending inter partes review, which Judge Albright was known for rarely granting; nor any contested motions to transfer, for which Judge Albright has famously adopted a rather restrictive posture (leading to various tangles with the Federal Circuit).

See RPX’s fourth-quarter review for more on the top judge rankings, venue, and other trends that shaped patent litigation in Q4 and 2024.