Waco NPE Filings Still Dominated by “Legacy” Campaigns—and Judge Albright

One of the most notable events shaping patent litigation in the past year was a key change targeting Western District of Texas Judge Alan D. Albright. In July 2022, the district’s chief judge imposed a case assignment order designed to close a divisional filing loophole that allowed plaintiffs to pick the famously plaintiff-friendly Judge Albright by targeting their complaints at the Waco Division, where he is the only district judge. The order instead required that Waco’s patent cases be randomly assigned among a group of 12 judges throughout the Western District (now 11), including Judge Albright.

However, while that order does appear to have lessened the appeal of West Texas among patent plaintiffs, Judge Albright is still getting the bulk of Waco’s NPE filings as of the end of the first quarter.

The reason is that within a few weeks of the July order, the Western District developed a general practice of assigning new cases to the same judge who oversaw prior litigation involving the same parties and patents. Most of the cases in these “legacy” campaigns have thus ended up before Judge Albright, who of course presided over all of Waco’s prior NPE litigation, while cases falling in new campaigns have been randomly distributed. It appears that approximately 90% of disputes in legacy campaigns with an active case in the district have been assigned to the judge (usually Albright) who has presided over the earlier cases. When there are no active cases in a legacy campaign, the new dispute has been assigned to the legacy judge (again, usually Albright) about 50% of the time.

Since the July order, NPE cases in legacy campaigns have accounted for a little less than two thirds of the cases filed in Waco.

The number of cases being filed in legacy campaigns appears to have slowed in March—though monthly case counts are volatile, so this trend could reverse. On the other hand, these legacy campaigns may eventually run out of new defendants to sue. If that happens, Waco may experience yet another downshift in NPE activity.

See RPX’s report on the first quarter for more on this and other trends impacting patent litigation in Q1.