Texas Patent Pendulum Swings Back From West to Eastern District

Two years after a July 2022 order forced patent case assignments to broaden beyond a single West Texas judge to a team of a dozen in the district, patent attorneys are once again flocking to a courtroom in the Lone Star State’s eastern region where a mountain of cases stand before another solitary judge.

Almost every case a plaintiff filed against Ricardo Bonilla’s clients in 2022 was in the US District Court for the Western District of Texas, said the principal at Fish & Richardson PC. Few of his clients—spanning telecommunications, software, and standard essential patents— were sued in the Eastern District of Texas before the order.

Now many of his clients are litigating in the Eastern District of Texas where plaintiffs filed more than 900 new patent cases in the last 12 months, more than double the amount in 2022. And most of those cases are landing on Chief Judge Rodney Gilstrap’s desk in Marshall, a town of less than 25,000 people roughly 45 minutes west of Shreveport, La.

The Western District was once the most popular venue in the country for patent suits, receiving over 800 cases in 2022—most went to Judge Alan Albright, who had the most patent-heavy docket in the country that year and took on almost every patent case in the district for three years, according a 2023 Bloomberg Law patent litigation report. His popularity raised eyebrows at the US Supreme Court, where Chief Justice John Roberts in December 2021 issued a year-end report calling for a rules review for case assignments.

Roberts’ memo ultimately prompted the then-chief of the Western District of Texas, Judge Orlando Garcia, to order diversification of judges reviewing patent cases. After Garcia’s order, patent attorneys pivoted back to the Eastern District, a jurisdiction that had been ground zero for patent litigation a decade earlier.

Plaintiffs want consistency, Bonilla said, not the ''roulette wheel” now dictating case assignments in the Western District.

“If you are a plaintiff, you really want to have certainty on who is going to hear your case and who is going to be handling it,” Bonilla said. Plaintiffs have a 90% chance of appearing before Gilstrap compared to a one in 13 chance of appearing in front of Albright.

The Eastern District doesn’t have a case assignment order like its counterpart to the west, though Gilstrap did sign an order in January 2023 leaving him with 90% of all civil cases filed in Marshall.

In 2022, the year of Garcia’s order, 688 new patent cases were assigned to Albright in Waco — a town halfway between Dallas and Austin—while 12 judges scattered across the Western district in Austin, San Antonio, Midland, and El Paso handled less than 50 each. Patent dispute filings have since halved in West Texas and the broad distribution of cases has yielded slightly more than 400 complaints in the last 12 months, according to Bloomberg Law data.

Aimee Fagan, a partner at Sidley Austin LLP’s Dallas office, has seen an increase in patent filings in the Eastern District of Texas, and noted Illinois is nearing the same amount as the third-most popular venue, the District of Delaware. Fagan said plaintiff’s attorneys are increasingly filing in the Eastern District to be in front Gilstrap because of it removes uncertainty of judicial assignments.

“The Eastern District, I predicted was going to pick back up under the purview of the Western District’s judicial climate after the 2022 order,” Fagan said. “That has definitely shown itself to be true.”

Venue Rules Shift

The Eastern District was the top venue for patent cases in 2013 with 1,513, followed by the District of Delaware with 1,336, and the Central and Northern Districts of California, at 417 and 396, respectively, according to a 2014 Bloomberg Law global patent litigation report.

The Supreme Court’s 2017 decision in TC Heartland LLC v. Kraft Foods Group Brands LLC found plaintiffs could only sue a defendant for patent infringement in a district in which the defendant resides or committed the accused acts. The underlying case was the result of litigation in Delaware, but changed the Eastern District of Texas’s prominence of handling the most patent cases by forcing plaintiffs to file their suits in other venues if they could not meet the requirement in the jurisdiction.

A year after TC Heartland, President Donald Trump appointed Albright to the Western District of Texas. His patent docket began to rise, with him handling 77% of the Western District’s more than 800 new patent cases in 2022. Gilstrap, in comparison, handled 76% of the Eastern District’s more than 400 patent filings, according to the 2023 Bloomberg Law report.

Wasif Qureshi, a partner at Jackson Walker LLP’s Houston office, said most of his clients’ cases were in the Eastern District until Albright took the bench.

Sen. Thom Tillis (R-N.C.) and then-Sen. Patrick Leahy (D-Vt.) shared their concerns in a November 2021 letter to Chief Justice Roberts about a “single district court judge” in Texas. The senators said the judge—who they didn’t name but had similar stats as Albright—"openly solicited cases” at meetings and other events, urging plaintiffs to file in his court.

Roberts’ memo followed a month later.

The 2022 order caused most new cases filed in Waco to be assigned to other judges and not Albright, Qureshi said of his clients.

During the two years since the July 2022 order, the Western District received 1,099 patent-related cases while the Eastern District received 1,455 patent-related cases.

Gilstrap, an Obama administration appointee, received 645 of the patent filings in the Eastern District during the last 12 months, compared to Albright receiving 123 in the Western District during the same time frame.

But the pressure on Albright’s court isn’t likely to change soon because of a May 2024 order filed by Chief Judge Alia Moses of the Western District of Texas. The order continues to randomly assign patent cases among the district judges but also forces parties, hoping to move their related cases to Waco, to provide the assigned judge “sufficient legal and factual justification” for the transfer.

Fagan said Albright and Magistrate Judge Derek Gilliland still handle the most patent cases for the Western District, but volume has picked up for Judge David Counts in the Midland division and Judge Robert Pitman in the Austin division so far this year.

Plaintiffs changing strategy

Qureshi said he hasn’t noticed a difference in types of plaintiffs filing in the Eastern versus Western district since the order. Big tech and corporations are still defending themselves in both districts, often against non-practicing entities, or companies that own and enforce patents.

“There are still a lot of NPE cases in the Western District,” Qureshi said. “A lot of those are brought by the same set of firms.”

NPEs like VDPP LLC, InnoMemory LLC and Symbology Innovations LLC have filed lawsuits in both the Western and Eastern District before and after the order against defendants in various industries, including NEC Corp., Yves Saint Laurent America Inc. and Honda Motor Co., according to court records.

Private equity companies have entered the patent space by acquiring patents in hopes of licensing and being more strategic with litigation, according to Fagan.

“I feel like they are a little smarter and more organized,” Fagan said. “But that is definitely not going away.”