Judge Albright Stays in Second Place Following Waco’s Rule Changes Last Year

Eastern District of Texas Judge Rodney Gilstrap remained the nation’s top district judge in the third quarter of 2023, with 12% of all new patent litigation falling in his courtroom. Once again, Western District of Texas Judge Alan D. Albright held a distant second place at 7%, his patent caseload slimmed down as a result of case assignment rule changes in Waco designed to reduce the concentration of patent litigation before him.

As Judge Albright’s caseload has shifted, so has his dynamic with the Federal Circuit over a familiar issue: motions to transfer for convenience. Starting in 2020, the appellate court began to repeatedly reverse him on that issue, in each instance identifying a series of recurring legal errors, in response to mandamus petitions from parties with transfer motions that he had either denied outright or ignored while moving on to other substantive matters. However, after reversing Judge Albright 18 times in 2021 alone, that wave of reversals became a trickle as he adjusted his analyses to account for the Federal Circuit’s rulings on both his application of the substantive convenience transfer factors and on the issue of timing—overturning him on mandamus just six times in all of 2022.

The Federal Circuit has done so only twice in 2023: most notably, in its precedential February In re: Google ruling, which took an even more limiting view of a district judge’s discretion than before (deferring to Judge Albright’s factfinding on issues like time to trial, but not necessarily his conclusions of law) and held that NPEs lack an interest in getting cases to trial quickly. The second reversal, issued in June, largely just applied that same rationale to a pre-Google transfer denial. In the meantime, Judge Albright has further shifted his approach in response to the Google decision, albeit begrudgingly—while the Federal Circuit issued no mandamus reversals against him whatsoever in Q3.

Defendants in his courtroom have also recently hit a mandamus wall on two other types of issue. The first was improper venue: In late September, the Federal Circuit declined to disturb Judge Albright’s ruling that a plaintiff can establish venue based on an in-district property not leased until after the case was filed, facts that were not pleaded until an amended complaint. The decision appeared to stretch a prior Federal Circuit opinion that concerned an amended complaint grounding venue in newly pleaded facts, but where those facts predated the original complaint. (RingCentral, the defendant in that case, has since asked the full Federal Circuit to reconsider that denial, arguing that the decision rejecting its petition would “effectively shield[] improper venue rulings from appellate review” by allowing parties to retroactively fix venue defects through amended complaints.) The second issue was alternative means of service on foreign defendants, an issue on which Judge Albright has lately shown significant flexibility—recently allowing service against a Taiwanese company’s limited-purpose outside counsel.

See RPX’s third-quarter review for more on venue and other trends impacting patent litigation in Q3 and 2023 to date.