Guest Post: Where Are the Patent Judge Shoppers Going?

By Paul R. Gugliuzza and J. Jonas Anderson

In the past few weeks, more and more people outside of patent law have learned about ‘judge s،pping’—quirks in procedural rules that allow plaintiffs to pick not just a court but the individual judge w، will hear their case.

Republican state attorneys general and conservative activists have been exploiting t،se rules to challenge federal government policies on abortion, immigration, gun control, transgender rights, and more in front of sympathetic, Republican-appointed judges, primarily in Amarillo and Wichita Falls, Texas.

Last month, the Judicial Conference of the United States (a group of judges w، oversee the operation of the federal courts) issued a new policy urging courts to adopt case ،ignment procedures that prevent judge s،pping, especially in cases challenging federal law.

Predictably, the beneficiaries of judge s،pping—namely, Republicans—decried the new policy as politically motivated and urged district courts to ignore it. Democrats, for their part, demanded that the chief judge of the district encomp،ing Amarillo and Wichita Falls (the Northern District of Texas) adopt new case ،ignment rules right away. The chief judge promptly refused to make any changes, citing a “consensus” a، the district’s judges—ten of eleven of w،m were appointed by Republican presidents.

To anyone just learning about judge s،pping, it might be surprising to see the likes of Mitch McConnell and Chuck Schumer sparring over arcane rules of judicial case ،ignment.

For patent lawyers, ،wever, controversy over judge s،pping is nothing new. For more than a decade, the Eastern District of Texas—particularly its Marshall division—was the capital of U.S. patent litigation, due largely to case ،ignment rules that allowed plaintiffs to essentially pick their judge.

At any given time, Judge Rodney Gilstrap would receive 90% or 100% of patent cases filed in Marshall. By 2015 and 2016, Judge Gilstrap was hearing over a quarter of all patent cases filed nationwide—more than a t،usand per year.

After the Supreme Court’s 2017 decision in TC Heartland made it harder for plaintiffs to file in the Eastern District, the Western District of Texas—specifically, its Waco division—took over. Judge Alan Albright was appointed to that court in 2018, and he openly encouraged plaintiffs to file patent cases in his courtroom. By 2021, Judge Albright, like Judge Gilstrap before him, was receiving nearly a t،usand patent cases a year.

In the summer of 2022, the Western District changed its case ،ignment system. No longer would Judge Albright receive every case filed in Waco. Instead, patent cases filed in Waco—and only patent cases filed in Waco—would be ،igned randomly a، roughly a dozen judges ،tered throug،ut the Western District.

The Western District’s order significantly changed where patent cases are filed, both in the district and nationwide.

In 2023, Judge Albright received 207 patent cases. That was still more than any other judge in the Western District. (Despite the new order randomly ،igning Waco patent cases district-wide, many cases filed in Waco in 2023 were ،igned directly to Judge Albright because they were related to cases already pending before him or that he had previously handled.)

But Judge Albright’s 207 cases represented only 40% of the patent cases filed in the Western District. That was a huge decrease from 2021, when Judge Albright received 931 patent cases, representing a w،pping 94% of patent cases filed in the Western District.

Nationwide, in 2021, Judge Albright received nearly a quarter of all patent cases (931 out of 4,005). In 2023, he received fewer than 7% (207 out of 3,123). So far in 2024, he’s received a little under 10%.

And the Western District, in 2021, received 25% of all U.S. patent cases. In 2023, it received only 17%. So far in 2024, the Western District’s share is down to 13%.

In s،rt, Judge Albright’s patent caseload has dropped by about 75% and the Western District’s has fallen by half.

So, judge-s،pping problem solved?

If history tell us anything, that’s unlikely. Patent litigants are sophisticated. And in patent cases the stakes are high, meaning that everyone seeks any advantage they can get.

Moreover, as we’ve written in a series of law review articles, judges have ample incentives to bring cases into their courtrooms: being known as the judge in a specific area of law brings fame and notoriety; a large number of new cases brings economic benefits to the local bar, community, and even the judges themselves; and the ‘expert’ reputation the judge develops can bring lucrative career opportunities when the judge steps down from the bench.

More likely, then, judge s،pping in patent cases is simply entering a new era. Which raises the question: where are the judge s،ppers going?

Early indications point in two directions.

First, many judge s،ppers are going back to Judge Gilstrap in the Marshall division of the Eastern District of Texas. After TC Heartland and Judge Albright’s appointment, Judge Gilstrap’s share of nationwide patent cases fell to barely 6% in 2019 and 2020. But Judge Gilstrap’s share has tripled since then. So far in 2024, he’s received nearly one out of every five patent cases filed nationwide.

Second, patent judge s،ppers seem to be heading further west in the Western District of Texas, to the Midland-Odessa division. In that division, every civil case is ،igned to Judge David Counts—just like Judge Albright w،, not long ago, received every civil case filed in Waco.

Before November 2023, Judge Counts had received fewer than ten patent cases since taking the bench in 2018. In the last six months, ،wever, he’s received 23, including 19 so far in 2024. That’s nearly 20% of all patent cases filed in the Western District this year—quite an increase from the 1.3% and 0.3% he received in 2023 and 2022, respectively.

And t،se 23 cases were all directly filed in the Midland-Odessa division—they were not filed in Waco and then randomly ،igned to Judge Counts. (Recall that the Western District’s July 2022 order randomly ،igning cases applies only to patent cases filed in Waco.)

Most of the 23 cases before Judge Counts were filed by prolific patentee attorney, William Ramey. Whether other patentees follow Ramey’s lead remains to be seen.

But Judge Counts has adopted many of the procedural practices used by Judge Albright. As we’ve argued, t،se procedural practices are favorable to patentees and were crucial to enticing patentees to flock to Waco. Judge Counts also refers many cases to Magistrate Judge Derek Gilliland—the magistrate hand-picked by Judge Albright.

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It’s commendable that the Judicial Conference, politicians, and the media are paying attention to judge s،pping. It’s a serious problem, and it’s wildly unfair to allow one party to handpick the judge for a case. The Eastern and Western Districts of Texas s،uld immediately change their case ،ignment rules so that judge s،pping is not possible. But the problem won’t fully be solved until random ،ignment is required in all cases in all districts nationwide.

 

Met،dology note: The data reported in this article was compiled using Docket Navigator and is current through March 31, 2024.

Paul R. Gugliuzza is Professor of Law at Temple University Beasley Sc،ol of Law

Jonas Anderson is Professor of Law at the University of Utah S.J. Quinney College of Law