Judge who bogarts patent cases unites senators

A bipartisan pair of U.S. senators took aim at a Texas federal judge who handles a quarter of the nation’s pending patent infringement lawsuits and who is often challenged on decisions not to transfer cases to California district courts.

Senators Thom Tillis, R-NC, and Patrick Leahy, D-VT, wrote a letter to Supreme Court Chief Justice John G. Roberts Jr. asking him to direct the Judicial Conference to conduct a study of “actual and potential abuses.”

In the Tuesday letter, the senators asked Roberts to implement changes to address venue disputes involving U.S. District Judge Alan D. Albright of Waco and suggest possible legislation.

“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,” they wrote.

Since Albright -- a former patent litigator -- was appointed as a federal judge by President Donald Trump in 2018, the number of patent cases filed in the Western District of Texas has skyrocketed from five in 2017 and 2018 to more than 800 last year.

Albright has not been shy about promoting his courthouse as a good place to file patent cases.

Defendants, which often are technology companies based in Silicon Valley, have sought to transfer the lawsuits to the Northern District of California, arguing the cases would be more convenient there because that’s where witnesses and documents are.

Albright, noting that the defendants have offices in Austin, has usually rejected those transfer motions.

Attorneys for major California companies, such as Google LLC and Juniper Networks Inc., have increasingly challenged his decisions, filing writs of mandate with the U.S. Court of Appeals with the Federal Circuit.

Of 23 mandamus petitions filed in Albright cases this year, Federal Circuit panels have granted 13 of them, according to Paul R. Gugliuzza, a professor at Temple University Beasley School of Law who wrote a paper cited by the senators.

“That’s pretty high for interlocutory appeal,” Gugliuzza said in a phone interview Thursday.

Corporate defendants have filed more writ petitions over Albright’s decision to deny a venue transfer in the past month.

Defendants have done well in the few patent cases that have gone to trial before Albright, with a majority winning. But Gugliuzza and other critics say the problem for companies is that the cost of defending a case for years adds up, prompting the vast majority to settle.

Albright, through a spokesman, declined to comment on the senators’ letter Thursday.

The battle over venue has dragged on for years, with plaintiffs filing in the Eastern District of Texas, and now the Western District, because judges in the Lone Star State are disinclined to grant defense motions to dismiss early in the case.

Defendants complain that this leaves them at a disadvantage, stuck litigating a case in Texas even if it’s weak. The net effect, Gugliuzza said, is that many defendants choose to settle.

In the few cases that have actually gone to trial before Albright, defendants have done fine, with a majority winning. But Gugliuzza and other critics say the inability to squelch a case early leads to settlements just to avoid litigation costs.

Albright has denied most defendants’ motions to transfer venue this year. California companies would rather defend patent lawsuits in their home state, where judges are far more likely to dismiss cases or grant motions to stay pending challenges to a patent’s validity before the U.S. Patent and Trademark Office.

“The underlying problem is not a patent problem,” said Mark A. Lemley, a Stanford Law School professor and partner at Durie Tangri LLP, in an interview Thursday. “It’s that you get to pick your judge.”

Any lawsuit filed in Waco goes before Albright, the only federal judge in town. That practice is not unique to the Western District of Texas, a sprawling venue that extends from Austin, where many California technology company offices are located, to El Paso. It’s different in the Northern District of California, for example. Lawsuits filed in San Jose are not necessarily assigned to judges who are based there. They could end up before a judge in Oakland or San Francisco.

The senators’ letter asked Roberts to submit a report by May 1, 2022.