Judge Albright Topped the Rankings Last Year Despite Order Seeking Dispersal of Waco’s Patent Cases

The nation’s top district judge in 2022, with 14% of new patent litigation filed in his courtroom, was District Judge Alan D. Albright of the Western District of Texas, while District Judge Rodney Gilstrap of the Eastern District of Texas held a distant second place. However, the two judges swapped places for the fourth quarter, though they were separated by just a handful of defendants: Judge Gilstrap had 85 defendants in Q4 compared to Judge Albright’s 80 (each around 8% of the quarter’s total).

In recent years, Judge Albright leading the rankings would have been unremarkable given the latter’s long-standing popularity among patent plaintiffs. However, as previously reported by RPX in its third-quarter review, some had expected this to change as the result of a July 25 standing order issued by then-Chief Judge Orlando L. Garcia that seemed designed to reduce Judge Albright’s share of the country’s patent cases. Filing rules previously let plaintiffs pick their division, thus guaranteeing they could select Judge Albright, where he is Waco’s only district judge. But the July order established that Waco’s patent cases would instead be randomly distributed among a group of 12 judges from across the entire district, including Judge Albright.

Yet filings rebounded after an initial drop, as detailed in RPX’s fourth-quarter review—and by the time the year came to an end, the decline was less dramatic than some had anticipated. This is partly due to the district’s practice of assigning cases to the same judge as prior litigation with overlapping parties and asserted patents. Given the volume of litigation that has previously ended up on Judge Albright’s docket, he has been assigned a large number of these “grandfathered” cases.

A key question for many patent stakeholders is what will happen under new Chief Judge Alia Moses, who assumed the chief judgeship when Judge Garcia aged out of that position on November 18. While an Amended Order Assigning the Business of the Court issued by Judge Garcia three days before that transition suggested that Judge Albright would go back to getting all Waco patent cases, Chief Judge Moses has indicated that this will not be the case—at least, for now. On December 16, she amended Judge Garcia’s previous order to confirm that patent cases would still be assigned “as ordered on July 25, 2022 . . . with the exception that no further cases will be assigned to Senior Judge Frank Montalvo”. In other words, Judge Moses has confirmed that the post-July 25 status quo largely remains in effect as of the end of 2022: Judge Albright is likely to see the bulk of ongoing litigation in existing campaigns for the time being, while cases filed in new campaigns are likely to be spread more evenly among a pool now comprising 11 judges, down from 12.

See RPX’s report on the fourth quarter and 2022 for more on trends impacting patent litigation and the patent marketplace.