Judge Albright Slides to Third Place as Parties Spar over Venue Caselaw

Eastern District of Texas Chief Judge Rodney Gilstrap had the most overall patent litigation last quarter, seeing 18% of the defendants added in Q1. Western District of Texas Judge Alan D. Albright was tied for a distant third place with District Judge Robert W. Schroeder III of East Texas. Once the nation’s top patent judge, Judge Albright has seen his patent docket trimmed substantially by a July 2022 case assignment order that targeted the concentration of such cases in his courtroom.

Despite his lower spot in the rankings, litigation in Judge Albright’s courtroom has continued to attract headlines over his handling of convenience transfer motions, long a source of tension between him and the Federal Circuit. The appellate court has frequently overturned Judge Albright’s decisions in response to mandamus petitions objecting to his handling of the applicable transfer factors, including his emphasis on his district’s quick time to trial as relevant to the public interest factor contemplating relative court congestion, as well as his tendency to hold onto such motions while moving forward on claim construction and other substantive issues.

While those reversals have been less frequent in the past year compared to when they began in 2020, further tension has arisen over the Federal Circuit’s interpretation of cases from the Fifth Circuit, the regional circuit that sets the law governing this issue in Texas. Some had expected the Fifth Circuit’s October 2022 decision from In re: Planned Parenthood to require a more deferential approach, but the Federal Circuit held otherwise the following February in its In re: Google opinion. In that case, the Federal Circuit ruled that it owes no deference to a judge’s weighing of the court congestion factor based on a time to trial analysis (only that it must defer to the underlying factfinding), and further determined that a plaintiff that is not “engaged in product competition”—i.e., an NPE—lacks an interest in a quick trial altogether. With no Fifth Circuit ruling having yet addressed this specific issue, parties have continued to echo Judge Albright’s objection here—including in litigation between Red Rock Analytics, LLC and Apple, which have sparred over the “product competition” requirement in supplemental briefing for a still-pending transfer motion filed by the defendant back in August 2021.

More broadly, the debate over Judge Albright’s former concentration of patent cases, and the so-called judge-shopping loophole that enabled it, have led to calls for the wider imposition of rules requiring random case assignments. However, that debate became increasingly swept up in partisan issues over the past year, as conservative activists began filing litigation targeting policies and priorities of the Biden administration in single-judge divisions with judges perceived as friendly to their cases. This litigation was the apparent focus of a narrower recommended policy issued by the body overseeing the US federal judiciary in Q1—one that only pushes courts to adopt random case assignments in cases seeking nationwide injunctions (possibly excluding patent litigation).

For more on that policy and other developments impacting patent venue in Q1, see RPX’s first-quarter review.