How Waco turned a patent litigation hotspot


When Google’s high lawyer complained about patent-infringement plaintiffs flocking to file circumstances with one federal choose in Waco, Texas, she joined lecturers, senators, and the US Supreme Court chief justice, who had all beforehand criticised this focus.

“A culture of litigation” was undermining innovation, Halimah DeLaine Prado, Google’s common counsel (GC), wrote in an April weblog submit. She famous that just about 25 per cent of all US patent circumstances have been being filed in “a single courthouse”.

US District Judge Alan Albright presides within the single courthouse in Waco, a Texas city about 100 miles north of Austin, which Prado singled out. Albright started brazenly promoting at trade conferences and web-posted occasions that he needed to listen to patent circumstances after his appointment was confirmed in September 2018.

On the bench, Albright — a former patent litigation companion at Houston’s Bracewell, and federal Justice of the Peace — established fast-track procedural guidelines for patent infringement fits, which his critics have deemed to be extra beneficial for plaintiffs.

Some 900 patent infringement circumstances are actually pending earlier than Albright, regardless that his refusals of defendants’ requests to switch out of his court docket have been repeatedly overturned by the US Court of Appeals for the Federal Circuit.

The focus of circumstances, if it continues unabated, will draw the eye of patent litigation attorneys worldwide since firms with world operations are usually being known as to look as defendants in Albright’s court docket.

In November 2021, two US senators who serve on the Senate judiciary committee — Thom Tillis, a Republican from North Carolina, and Patrick Leahy, a Democrat from Vermont — despatched a letter to Chief Justice John Roberts lamenting what they described as Albright’s “clear and egregious abuses of discretion”. They complained in regards to the “extreme concentration of patent litigation” at his court docket, in addition to his “unseemly and inappropriate conduct that has accompanied this phenomenon”.

Republican senator Tom Tillis has complained of Alan Albright’s affect over patent legislation © Getty Images

In his annual report issued in January, Roberts acknowledged the senators’ considerations. The Chief Justice mentioned he has requested the director of the federal courts’ administrative workplace, to guage “case assignment procedures” which “in effect, enable the plaintiff to select a particular judge to hear a case”.

Two legislation professors have been the primary to concern warnings in regards to the focus of circumstances coming earlier than Albright. “[A] judge advertising for patent cases and plaintiffs shopping for that judge undermine public confidence in the impartiality of the judiciary, make the court an uneven playing field for litigants, and facilitate the nuisance suits patent trolls favour,” Jonas Anderson at American University’s Washington College of Law and Paul R. Gugliuzza at Temple University’s Beasley School of Law wrote in a paper posted on-line in August 2020.

By presiding in so many patent circumstances, Albright accumulates data of the intricacies of them, which Anderson concedes can profit each plaintiffs and defendants. But Anderson claims that, throughout greater than three years on the bench, Albright has established procedural guidelines that favour plaintiffs past simply aiming for a speedy trial — which, in itself, offers them higher odds of securing settlements.

In response, Albright says: “There is certainly no evidence that any one side is benefiting from the fact that cases are being filed in my court.” He added that he has “worked hard” to get patent circumstances to trial inside 24 months — speediness that advantages all litigants — and to develop procedural guidelines which are “party agnostic”.

By his estimate, patent infringement plaintiffs and defendants have received an equal variety of verdicts in his courtroom. As to the appellate court docket’s ruling that he erred by denying defendants’ switch requests, these opinions give “me more guidance about what to do in the future”, Albright explains. “We do everything we can to comply with what we think the Circuit is trying to tell us.”

Anderson suggests it’s too early to measure any biases of Albright based mostly on trial wins and losses, as he has solely been on the bench for 4 years and plenty of patent circumstances take no less than that lengthy to get to trial.

To staunch the move of patent plaintiffs selecting Albright, and to forestall different federal judges from following his instance, Anderson advocates for revised jurisdictional and case-assignment guidelines. He needs plaintiffs to file circumstances solely in a division, not merely the broader district. Under that proposal, plaintiffs may now not file in Waco just because the defendant has established a retail retailer elsewhere within the Western District, for instance.

Anderson additionally needs guidelines that require single-judge divisions to share case assignments randomly with different judges of their district, so plaintiffs now not have the choice to choose who will hear their claims. Either Congress or the federal court docket directors may impose these adjustments, Anderson says.

Google’s Prado, who took over Google’s GC function in August 2020, is pinning her hopes on Roberts’ mandated assessment of court docket polices.

“We hope it urgently addresses the judicial imbalances caused by abusive forum shopping,” she wrote on her weblog.