West Texas Remained Atop the Heap in Q2 as Judge Albright Reacted to Appellate Reversals

In Q2 2021, the Western District of Texas was the top venue for overall patent litigation and for litigation filed by NPEs, taking a close second place for litigation filed by operating companies. The most popular operating company venue was the District of Delaware, which took second place for both overall and NPE litigation. Meanwhile, the Eastern District of Texas, formerly an NPE hotspot before the realignment caused by the Supreme Court’s 2017 TC Heartland decision, was only the number three district for NPEs and overall litigation, tied for fourth place with the District of New Jersey for operating company filings.

While Judge Albright has taken systemic steps to address those procedural issues, his substantive transfer analyses continue to be a point of contention on appeal—though his approach has finally begun to shift, after a series of prominent reversals. In one May ruling, Judge Albright took a markedly different posture with respect to certain transfer factors in recognition of the Federal Circuit’s rebukes, applying factors related to witness travel distance less rigidly and placing less emphasis on his district’s quick time to trial. On the other hand, subsequent activity underscores that Judge Albright has not fully abandoned his former approach. In a recent decision, the Federal Circuit once again flagged several legal errors, in part faulting Judge Albright for overweighing “generalized connections” to his district in his analysis of the “local interest” factor and for discounting the convenience of party witnesses, in contravention of prior appellate rulings.

See RPX’s second-quarter review for more on Judge Albright, including his approach to motions alleging improper venue, as well as further analysis on other trends impacting the patent space.