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Patent Litigation Update - February 2023

February 28, 2023
Business Litigation Reports

Since his appointment to federal judgeship by President Trump in 2018, Judge Alan D Albright has gained a reputation as a patent-plaintiff-friendly judge known for expeditiously taking patent cases to trial—putting Waco, Texas on the map as a hotbed for patent litigation. Judge Albright’s patent docket initially grew at a remarkable pace, increasing from 7% of total national patent filings in 2019 to 23% in 2021—more than three times the amount of the national patent filing assigned to the next highest federal judge, Chief Judge Rodney Gilstrap in the Eastern District of Texas. In recent months, that figure has decreased following a series of standing orders issued by former Chief Judge Orlando Garcia and current Chief Judge Alia Moses. The effect of these orders is evidenced by the reduction in plaintiffs filing new patent cases in the Waco Division of the Western District of Texas. This article explores developments in the eight months since the issuance of then Chief Judge Orlando Garcia’s initial July 2022 Order.

July 2022 Order Randomly Assigning Cases Filed in the Waco Division

On July 25, 2022, then Western District of Texas Chief Judge Orlando Garcia issued an order declaring that new patent cases filed in the Waco Division would be randomly assigned among 12 judges in the Western District of Texas. See Order Assigning the Business of the Court as it Relates to Patent Cases (Garcia, C.J.) (W.D. Tex. July 25, 2022). Initially, litigants expected that this would drastically reduce the number of filings in the Waco Division as plaintiffs would have only an expected 8% chance of their cases being randomly assigned to Judge Albright—a significant change from the certainty that previously came from filing patent cases in the single-judge division. But statistics show that turned out not to be the case. Over the next three months, of the 210 patent cases filed in the Waco Division, 50% were assigned to Judge Albright.

On November 9, 2022, then Chief Judge Garcia issued a subsequent order days before stepping down from his role as Chief Judge and taking senior status. The new order stated that Judge Albright would be assigned “[a]ll cases and proceedings in the Waco Division.” See Amended Order Assigning the Business of the Court (Garcia, C.J.) (W.D. Tex. Nov. 9, 2022) (emphasis added). After the November Order issued, the percentage of new patent cases in the Waco Division assigned to Judge Albright temporarily increased—reaching a high of almost 80% in December 2022. Plaintiffs’ attorneys, however, appear to have remained skeptical of the November Order because the new language conflicted with the earlier July Order and because the limited data had not yet substantiated whether the spike in patent case assignments to Judge Albright in December was due to the November Order.

On December 16, 2022, newly appointed Chief Judge Alia Moses addressed the conflicting orders in an Amended Order, clarifying that Judge Albright would be assigned “[o]ne hundred percent (100%) of the civil docket in the Waco Division, with the exception of patent cases.” See Amended Order Assigning the Business of the Court (Moses, C.J.) (W.D. Tex. Dec. 16, 2022) (emphasis added). The apparent inconsistency between then Chief Judge Garcia’s July and November Orders had finally been addressed by the new Chief Judge. But it continued to be unclear what, if any, effect the presumed clarification would have on assignment of patent cases filed in the Waco Division.

Data on Patent Case Assignments in the Waco Division

After the December Order issued, the percentage of new patent cases filed in the Waco Division assigned to Judge Albright dipped from a high of 80% in December to below 60% as of February 15, 2023—a signal that the Amended Order indeed had an impact on patent case assignments. Moreover, the percentage of total patent filing assigned to Judge Albright’s fell to under 18% for all of 2022—a decrease from the 24% of national patent filings assigned to him from January through July 2022. The full impact of the series of orders remains to be seen, but an initial assessment suggests that the Amended Order on patent case assignments will slow the influx of patent filings in the Waco Division. Whether patent cases filed in the Waco Division will continue to be assigned to Judge Albright remains uncertain in light of data from July 25, 2022 through February 15, 2023, which show that Judge Albright continues to be assigned the majority of the Waco Division’s new patent filings.

Moving Forward—Patent Plaintiff Strategies

Faced with these statistics, plaintiffs with existing related cases before Judge Albright have begun referencing those cases on the civil cover sheet of new patent infringement complaints, in hopes of increasing the likelihood that their new cases would also be assigned to Judge Albright. Some plaintiffs have even taken the approach of filing a “Notice of Related Cases” immediately after filing the complaint. The impact of this strategy is evidenced by the statistic that 41% of the patent cases assigned to Judge Albright between July 25, 2022 and February 15, 2023 have been filed by a total of four plaintiffs—all of whom actively litigated and had pending patent cases before Judge Albright prior to the July Order.


In sum, the orders from the Chief Judges in the Western District of Texas have reduced the percentage of new patent cases filed in the Waco Division that are assigned to Judge Albright, though the data to date show the orders have had less of an effect than initially anticipated. As time goes on, patent plaintiffs will continue trying to find strategies to improve the chances that their new patent cases filed in the Waco Division will be assigned to Judge Albright. One thing is for certain: future litigants will continue to watch and track the data on patent case assignments in the Waco Division closely, all in an effort to best position their future cases for success.