Judge Albright Fell from First Place in Q1

Western District of Texas Judge Alan D. Albright became the nation’s top district court patent judge in Q3 2019, thanks in large part to his focus on getting cases to trial quickly, his tendency to deny contested motions to stay pending the outcome of inter partes reviews (IPRs), and his inclination against granting early patent eligibility challenges under Alice—among other practices that drew the eye of numerous plaintiffs. However, this changed in Q1 2023, as the result of a July 2022 case reassignment order issued by West Texas’s chief judge that was designed to undercut this dominance.

This past quarter, Judge Albright fell to a distant third place, just barely edged out by Delaware District Judge Maryellen Noreika, with 4% of all Q1 patent litigation in his courtroom. Reclaiming first place is a familiar name: District Judge Rodney Gilstrap of the Eastern District of Texas.

While Judge Albright has fallen out of first place, one aspect of the pre-July 2022 status quo that apparently remains intact has been his ongoing back-and-forth with the Federal Circuit over his handling of convenience transfer motions. As noted in RPX’s prior coverage, the proper application of the relevant transfer factors—and the extent of a district judge’s discretion to do so—has been at the center of the appellate court’s ongoing disagreement with Judge Albright, who has often denied such motions since taking the bench in 2018. Starting in 2020, the appellate court has repeatedly reversed him on that issue through mandamus review, identifying a series of recurring legal errors in his transfer analyses.

An October 2022 ruling from the Fifth Circuit—the regional circuit that determines the law governing convenience transfers in Texas—appeared to depart from the Federal Circuit’s prior take on issues central to the analysis of such transfer motions, including the location of evidence, the cost of attendance for witnesses, and the district judge’s overarching discretion over such matters. However, in early February, the Federal Circuit interpreted that closely watched decision as still justifying its current approach. In its In re: Google ruling, the court held that a clear showing that a venue is more convenient takes precedence over the district judge’s discretion. Even more significantly, the Federal Circuit determined that NPEs do not have an interest in getting cases to trial quickly—and that a district judge lacks the discretion to give undue weight to his district’s time to trial.

Judge Albright has since acknowledged the binding impact of this decision—in particular, with respect to his findings on time to trial—in a case filed by Motion Offense, LLC against Alphabet (Google). The plaintiff, in its attempt to defeat a Google transfer motion, had previously asked Judge Albright to sidestep the Federal Circuit in favor of a direct application of the Fifth Circuit’s more limited approach leading up to Planned Parenthood. However, Judge Albright granted Google’s motion in early October, ruling that he could not overrule the Federal Circuit’s reasoning on transfer cases. After the Fifth Circuit issued its decision later that month, the parties spent the rest of the year debating its impact.

On May 23, Judge Albright denied a motion for reconsideration from Motion Offense, holding that the In re: Google decision requires that he place no weight on time to trial with respect to the “court congestion” transfer factor when the defendant is an NPE. However, he also took the opportunity to offer a criticism of that holding—noting “that the Federal Circuit in In re Google cites no binding Fifth Circuit precedent that compels its conclusion that a plaintiff or patentee be engaged in product competition in the marketplace”, and further arguing that this requirement “appears to be made out of whole cloth”.

See here for more information on that decision from Judge Albright. More on venue and other trends impacting patent litigation can also be found in RPX’s first-quarter report.