Judicial Conference & Congressional Attention Stir Change

This time last year, the Western District of Texas (WDTX) was getting a lot of attention from Washington DC policymakers. That is, a plaintiff’s ability to guarantee that its case would be heard by Judge Albright simply by filing in his Waco court was seen as “unseemly” and, coupled with the fact that his court had close to 30% of the nation’s patent docket, improper. Likewise, to many, the twenty or so successful mandamus filings reversing the Judge on issues of venue only amplified the urgency for legislative and/or judicial intervention.

Whether you agree with the above sentiment or not, it was clear as far back as last summer that these practices were plainly living on borrowed time. Back then, it was clear within DC policy circles that if the Judicial Conference did not step in and put an end to Judge Albright’s perceived monopoly on patent cases, that the legislators were prepared to take action.

Yesterday, the Chief Judge of the WDTX took action.

As has been reported, new cases filed in Waco (from 7/25 onward) will be distributed across 12 different WDTX judges, including Judge Albright, will be randomly assigned to provide for a more “equitable distribution”(order here) Given that Judge Albright already has a massive docket, it is unclear if he will even be in the distribution pool until other judges catch up with him. And even then, there is but an 8% chance of drawing him going forward.

So, while filing in Waco has been the standard playbook for plaintiff’s for the last 3-4 years (especially NPEs), that playbook has seemingly been thrown out the window. While Judge Albright’s trial schedules were quite aggressive, and his view on not staying cases pending PTAB review quite clear, it seems unlikely that the other 11 judges will be of the exact same mind. With respect to schedules in particular, this is the pressure (and expense) that is wielded most effectively by NPEs; Which begs, the question, if not WDTX then where?

While the WDTX and EDTX will still remain popular choices, plaintiffs may need to start considering other options.

Of course, anyone with a path to the ITC (i.e., necessary domestic industry and target imports) needs to go there. But, rarely do NPEs meets domestic industry. My expectation is that the faster districts, like the Virginia “rocket docket” may become attractive options. The Virginia judges uniformly embrace the philosophy for speed, and there is increasingly venue found in the Dulles technology corridor. While stays may be more likely in Virginia as compared to Texas courts, the ability to get the case moving quickly may offset that concern.

What is clear, however, is the days of filing in Waco and being guaranteed Judge Albright, then convincing the PTAB to deny related IPRs given the court’s speed, are long over. The loss of that one-two punch is a significant blow to patent monetizers.