Bloomberg Law
May 25, 2023, 9:00 AM

ANALYSIS: The West Texas Exodus in Patent Law Didn’t Materialize

Robert Combs
Robert Combs
Legal Analyst

Last summer, in response to building pressure from Congress and the US Supreme Court, the District Court for the Western District of Texas adopted a new way to assign its judges to newly filed patent cases: randomly.

The purpose behind the change was clear. The order, issued July 25 by chief judge Orlando L. Garcia, was intended to dilute the status of Waco’s Judge Alan D. Albright as the district’s de facto patent jurist.

As expected, Albright’s share of W.D. Texas’s IP caseload plummeted after the change. But contrary to concerns and initial filing figures at the time, venue-shoppers didn’t leave the district in droves for other federal courts, according to Bloomberg Law’s just-released Litigation Statistics Series report on patent litigation.

The district did experience a modest downturn in patent litigation traffic in the second half of the year, but the report’s month-to-month totals show that none of the federal court system’s other popular patent forums saw a corresponding boost in their own filing totals.

West Texas’s Wild Ride

The report, featuring analysis of 2022 data from Bloomberg Law’s federal dockets and Litigation Analytics tools, said plaintiffs filed 3,750 patent lawsuits in US federal district courts in 2022, a 5.8% dropoff from 2021.

The Western District of Texas experienced a case dropoff as well from 2021 to 2022, but it remained the top forum for patent lawsuits for the third straight year—which the report ascribed to Albright’s massive caseload and “reputation for expeditious case handling.” Plaintiffs filed 863 patent lawsuits in the district last year, 668 of which were assigned to Albright himself. That’s 201 more than second-place District Court of Delaware received.

The report’s docket analysis also showed that Albright’s share of Western Texas’s patent assignments, which had remained above 90% in the first half of the year, fell to 38% in August, the first full month after Garcia’s order. That percentage stayed low for the rest of the year—although it still remained higher than a truly random assignment schedule would have yielded.

Erosion, But No Exodus

Despite the shakeup, the report found “some case erosion in late 2022—but no dramatic dropoff” in W.D. Texas’s monthly filing totals after July 25.

The district’s average monthly filing total did fall from 82 cases in January–June to 64 cases in August–December. But case totals rose in three of the year’s final four months, the report said, noting also that September and October were two of the busiest months of the year.

Despite Western Texas’s modest decline, the report said, the monthly totals for the other major district courts—those that received more than 100 patent case filings in 2022—"displayed no substantial pickup in cases that coincided with the July shift.”

Here are Western Texas’s monthly totals again, with the monthly totals of the next seven most popular courts added for comparison.

Of these top courts, only the Northern District of Illinois saw an upward trend in filings at the end of the year, but it doesn’t match the scope of Western Texas’s typical monthly litigation activity. Even the nearby Eastern District of Texas, the third most-chosen venue for patent lawsuits in 2022, didn’t appear to capitalize on the order, the report found.

Delaware’s Decline

“One would presume that the venerable District of Delaware would have proven a logical venue choice for patent holders who had no ties to Texas” beyond Albright, the report said. “But the court experienced a seismic shift of its own earlier in the year that might have forestalled such a migration.”

That shift was the standing order issued in April 2022 by Delaware’s chief judge, Colm F. Connolly, requiring parties to disclose to the court any litigation funding they had received from an outside source.

Delaware’s post-order monthly totals show a far greater decline in filings than Western Texas’s did—from a peak of 78 patent cases in April to 26 in December.

It is possible that the full impact of Garcia’s order is taking a while to play out, and that a future analysis of 2023’s dockets will reveal an ongoing migration of venue-shoppers to other forums. But if the patterns from the latter half of 2022 continue into 2023, the report observed, Western Texas will again finish as the top patent court, further undermining worries of a mass exodus of venue-shopping patent plaintiffs.

Bloomberg Law’s free “2023 Litigation Statistics Series: Patent Litigation” report is available here for subscribers and here for non-subscribers.

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