Senators Excoriate Perceived WDTX Venue Abuses
Back in September, I previewed the PTAB reform discussions that eventually issued as the Restoring the America Invents Act. The Act, clearly a rebuke of the Iancu administration’s changes to AIA trial practices, also included a provision encouraging district court stays in view of PTAB challenges. The unspoken concern behind the stay provision is the growth of patent litigation in the WDTX . If there was any doubt about that rationale, the Senate Judiciary has just explicitly put WDTX’s Judge Albright directly in its cross-hairs.
In its November 2nd letter (here) to Chief Justice Roberts, Presiding Officer of the Judiciary Conference, Senators Leahy (D-VT) and Tillis (R-NC) requested that the Judicial Conference investigate WDTX venue practices and provide a report to the Committee by May 1st. In doing so, the Senators highlighted:
Our understanding is that in some judicial districts, plaintiffs are allowed to request their case be heard within a particular division. When the requested division has only one judge, this allows plaintiffs to effectively select the judge who will hear their case. We believe this creates an appearance of impropriety which damages the federal judiciary’s reputation for the fair and equal administration of the law. Worse still, such behavior by plaintiffs can lead individual judges to engage in inappropriate conduct intended to attract and retain certain types of cases and litigants. . . .
In the last two years our nation has seen a consolidation of a large portion of patent litigation before a single district court judge in Texas. In 2016 and 2017, this single district court heard only, on average, one patent case per year. Last year, however, nearly 800 patent cases were assigned to one judge in this district. This year, this district appears to be on track to have more than 900 cases. This means that roughly 25% of all the patent litigation in the entire United States is pending before just one of the nation’s more than 600 district court judges.
The concentration of patent litigation is no accident. We understand that a single judge in this district has openly solicited cases at lawyers’ meetings and other venues and urged patent plaintiffs to file their infringement actions in his court. Our understanding is that this single judge has also repeatedly ignored binding case law and abused his discretion in denying transfer motions. This has resulted in a flood of mandamus petitions being filed at the Federal Circuit. The Federal Circuit has been compelled to correct his clear and egregious abuses of discretion by granting mandamus relief and ordering the transfer of cases no fewer than 15 times in just the past two years.
The extreme concentration of patent litigation in one district and the unseemly and inappropriate conduct that has accompanied this phenomenon are, in our view, the result of an absence of adequate rules regulating judicial assignment and venue for patent cases within a district.
(internal footnotes omitted)
Congress seems reluctant to take on a perceived abusive venue issue of the judiciary directly, but given the tone of this letter, and absent some action by the Conference, it just might. Likewise, it is likely some form of PTAB legislation may be being finalized next Spring, the timing of the report could prompt a change to such a bill before it goes to the President’s desk. Either way, it seems that current WDTX venue practices may be short-lived.