Guest Post by J. Jonas Anderson
Patent litigation is highly concentrated before a handful of district court judges. Judge Alan Albright of the Western District of Texas is the latest high profile “patent judge,” receiving over 20% of the patent cases nationwide in 2020 and on track to surpass that figure in 2021.1 But, he is not the first judge to have such a heavy patent caseload: Judge Gilstrap of the Eastern District of Texas received northward of 40% of all U.S. patent cases as recently as 2016;2 and a number of judges in the district of Delaware consistently receive a very large number of patent cases.3 While all district court judges are generalists, various judges, including Judge Albright and Judge Gilstrap have used procedural mechanisms and their courts’ assignment practices to become de facto specialists.4 Judge Albright now receives more patent cases per year (he’s on track for 926 this year) than the amount of patent appeals heard by the entire Federal Circuit (around 835 appeals).5
While some U.S. Senators are now complaining about this “extreme concentration” of patent cases in one judge’s courtroom,6 defenders of Judge Albright’s actions point out that the judge is gaining expertise by presiding over so many patent cases.7 For example, one partner at a Waco law firm has stated that Albright offers “another option for taking or defending [] patent cases in a forum with someone who truly is an expert in that field.”8 This blog post will look at this ad hoc specialization and analyze whether there are ways that we could acquire benefits of judicial specialization in patent law while avoiding the extreme concentration of cases that we currently have.
The Federal Circuit is well aware of the judicially induced patent litigation concentration that has occurred in recent years.9 The Federal Circuit appears to be most concerned with the concentration of patent cases that has arisen in the Texas district courts.10 However, the tools that the Federal Circuit has with which to combat extreme forum shopping are limited. The court has been monitoring the Eastern and Western Districts of Texas through its typical review of final decisions as the court has been monitoring every other district court that hears patent cases.11 Uniquely, however, the court has also been monitoring the Texas courts via the court’s mandamus jurisdiction. Over the past two years, the court has granted mandamus eighteen times (and counting) on denials of motions to transfer from the Waco Division of the Western District of Texas.12 Further demonstrating the court’s attempt to regulate where patent cases are filed, the court has granted mandamus on issues from the Western and Eastern Districts of Texas an astounding amount of times when compared to other circuit courts in the past fifteen years.13 It is apparent that the Federal Circuit is cognizant of the concentration of patent cases in Texas, but it has limited tools at its disposal to combat the trend.
The Supreme Court has also been paying attention to Texas. Justice Scalia once referred, during oral argument, to the Eastern District of Texas as a “renegade” jurisdiction.14 In 2016, the Supreme Court made it more difficult for largely rural districts (like the Eastern District of Texas) to find venue over corporate defendants in patent cases.15 In TC Heartland, the Court held that in order to demonstrate venue in a case, a district court must be (1) within the state of incorporation of the defendant corporation, or (2) where the defendant is alleged to have committed acts of infringement AND where the defendant maintains a regular and established place of business.16 Thus, establishing venue in the largely rural Eastern District of Texas became more difficult in many patent cases; many corporate defendants do not have regular and established places of business in Eastern Texas, and few are incorporated in Texas.17 Despite the predictable drop in cases filed in Eastern Texas, within a few years the Western District of Texas had established itself as the go-to court for patent litigants. By 2020, over 20% of patent cases nationwide were filed in the Waco Division of the Western District of Texas.18 Clearly, TC Heartland had an effect on patent case concentration in district courts, but not the leveling effect that many predicted.
Congress has also expressed an interest in the concentration of patent cases and spreading the expertise gained by handling patent cases to more than a handful of judges. Congress has experimented with alternative arrangements regarding how patent cases are assigned to district court judges. In 2011, Congress created the Patent Pilot Program (PPP) which established that certain district courts could designate their patent cases to a subset of judges in their district.19 Fourteen district courts were initially designated as PPP courts.20 It was hoped that the PPP would allow a variety of district court judges to obtain specialty that would be valuable to litigants in the arcane world of patent litigation.21 Indeed, district court judges that were part of the PPP have acquired more patent expertise than non-PPP judges.22 However, many important district courts were not included in the PPP. In 2020, the last full year of the PPP, two district courts—the District of Delaware and the Western District of Texas—received nearly 50% of the patent cases nationally: neither the District of Delaware and the Western District of Texas were participating districts in the PPP.23
In various articles, I have proposed randomizing the judge selection process in order to distribute cases more evenly to various judges.24 Paul Gugliuzza and I have proposed randomization as well as tying venue to the particular division rather than the district as a whole;25 we think this also would largely reduce the extreme concentration of patent cases within a few district courts. I still believe these reforms would cure the worst ills of forum and judge shopping in patent law.
However, thinking holistically, I also believe that there is more for Congress to do. Aside from the venue reforms that courts have already made and the venue reforms and judge assignment reforms noted above, Congress would also be wise to implement a new, more robust version of the PPP. PPP judges have moved cases along more quickly than those cases heard by non-PPP judges.26 It has also led to a slight increase in judicial expertise in patent cases of the cadre of PPP judges.27 Furthermore, most PPP judges enjoyed the program and want it to continue.28
Ultimately, I would reinstate the PPP with two changes: (1) apply the PPP to all district courts, rather than just a select few, and (2) mandate that the PPP be the ONLY way that patent cases are assigned. For a number of reasons, these two changes would increase specialization in patent law, yet still preserve the American generalist jurist tradition.
First, expertise will be increased simply by having specific judges hearing multiple patent cases. These PPP judges will develop expertise at handling of patent cases. Unlike the situations in the Eastern District and Western District of Texas, however, the plaintiff will not be able to merely select a particular judge.29 Thus, we are unlikely to see the blatant judicial advertising to patent plaintiffs that we have recently seen in Western Texas.30 After all, the plaintiffs select the court under my proposal, not the judge.
Second, under my proposal, judges will develop this expertise in patent law by hearing an above-normal number of patent cases while still retaining the generalist perspective on the law. The PPP judges under my proposal would maintain regular caseloads in addition to their patent caseloads. Thus, they will bring their perspective from hearing a variety of cases to their patent work and avoid the trap of tunnel vision often associated with specialized courts.
The Patent Pilot Program was a congressionally approved way of infusing judicial expertise into the patent system. It was, unfortunately, underused. Because of district courts’ judge selection rules, many courts in and out of the PPP allow plaintiffs to select their judge. This has led to the extreme concentration of patent cases in the Eastern District of Texas and, recently, the Western District of Texas. By extending the PPP to every district court and mandating the assignment of patent cases to PPP judges, we can avoid the high concentration of patent cases that we see today.
[1] See J. Jonas Anderson & Paul Gugliuzza, Federal Judge Seeks Patent Cases, 71 Duke L.J. 419, 448 (2021).
[2] J. Jonas Anderson, Judge Shopping in the Eastern District of Texas, 48 Loyola U. Chi. L.J. 539, 539 (2016).
[3] Daniel Klerman & Greg Reilly, Forum Selling, 89 S. Cal. L. Rev. 241, 281–83.
[4] Anderson & Gugliuzza, supra note 1, at 452–76.
[5] Table B-8—U.S. Court of Appeals for the Federal Circuit Statistical Tables For The Federal Judiciary, United States Courts (June 30, 2021), https://www.uscourts.gov/statistics/table/b-8/statistical-tables-federal-judiciary/2021/06/30 (reporting 288 appeals from district courts, twenty appeals from the U.S. ITC, and 527 appeals from the PTAB between July 1, 2020 and June 30, 2021). There are other venues from which the federal circuit receives patent cases (primarily, the Court of Federal Claims), but most of the cases from these other venues are not patent cases.
[6] Letter from Sen. Patrick Leahy & Sen. Thom Tillis to The Hon. Chief Justice John Roberts (Nov. 2, 2021), https://fingfx.thomsonreuters.com/gfx/legaldocs/zdpxonybkvx/IP%20ALBRIGHT%20PATENTS%20letter.pdf.
[7] See, e.g., American Board of Trial Advocates, Waco Chapter, Attorneys: Judge Albright is right to court patent cases to Waco, Waco Tribune-Herald (Nov. 13, 2021), https://wacotrib.com/opinion/columnists/attorneys-judge-albright-is-right-to-court-patent-cases-to-waco/article_d6b3ed24-4341-11ec-8fb8-134e30733c41.html (arguing that Judge Albright has not acted improperly and that his experience is one of the attractions of his courtroom to plaintiffs).
[8] Tommy Witherspoon, Waco becoming hotbed for intellectual property cases with new federal judge, Waco Herald-Tribune (Jan. 18, 2020), https://wacotrib.com/news/local/waco-becoming-hotbed-for-intellectual-property-cases-with-new-federal-judge/article_0bcd75b0-07c5-5e70-b371-b20e059a3717.html.
[9] See J. Jonas Anderson, Court Competition for Patent Cases, 163 U. Penn. L. Rev. 631, 650 (2015) (citing Kimberly A. Moore, Forum Shopping in Patent Cases: Does Geographic Choice Affect Innovation?, 79 N.C. L. Rev. 889, 903 (2001) (highlighting that Judge Moore of the Federal Circuit analyzed forum shopping in patent cases prior to joining the bench)).
[10] See Anderson & Gugliuzza, supra note 1, at 425–26 (noting the Federal Circuit’s decisions regarding petitions of mandamus directed towards Judge Albright); Klerman & Reilly, supra note 3, at 260–61 (noting the Federal Circuit’s decisions regarding petitions of mandamus directed towards judges within the Eastern District of Texas).
[11] 28 U.S.C. § 1295 (granting the Federal Circuit exclusive appellate jurisdiction over all patent cases).
[12] Jonas Anderson, Paul Gugliuzza, and Jason Rantanen, Extraordinary Writ or Ordinary Remedy? Mandamus at the Federal Circuit (forthcoming 2022).
[13] See Anderson & Gugliuzza, supra note 1, at 425–26 (noting the Federal Circuit’s decisions regarding petitions of mandamus directed towards Judge Albright); Klerman & Reilly, supra note 3, at 260–61 (noting the Federal Circuit’s decisions regarding petitions of mandamus directed towards judges within the Eastern District of Texas).
[14] See Transcript of Oral Argument at 11, eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) (No. 05-130).
[15] See TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514, 1520–21 (2017).
[16] Id. at 1519–21.
[17] See Anderson & Gugliuzza, supra note 1, at 443.
[18] Id. at 448.
[19] Pilot Program in Certain District Courts, Pub. L. No. 111-349, 124 Stat. 3674 (2011) (codified at 28 U.S.C. § 137 note).
[20] Margaret S. Williams, Rebecca Eyre & Joe Cecil, Patent Pilot Program: Five-Year Report (Prepared for the Court Administration and Case Management Committee of the Judicial Conference of the United States) 1 n.2 (2016), https://www.fjc.gov/sites/default/files/2016/Patent%20Pilot%C20Program%20Five-Year%20Report%20(2016).pdf.
[21] See Colin Bosch,The Patent Pilot Program: What Is It, Is It Successful, and Should It Even Exist?, 22 UCLA J. of L. & Tech. i, 3–6 (collecting Congressional testimony expressing the desire for district court judges to gain experience in patent cases through the PPP). Ten years later, in 2021, the PPP expired and there is no apparent Congressional interest in renewing the program. See Matthew Bultman, Pilot Program’s End Likely to Affect Where Patent Owners Sue, Bloomberg Law (Mar. 9, 2021), https://news.bloomberglaw.com/ip-law/pilot-programs-end-likely-to-affect-where-patent-owners-sue.
[22] See Bosch, supra note 21, at 31-40Appx. A.
[23] See Robyn Ast-Gmoser & Anthony Blum, A Race Between West Texas and Delaware for The Patent Venue of Choice, JD Supra (Mar. 10, 2021), https://www.jdsupra.com/legalnews/a-race-between-west-texas-and-delaware-1379225/.
[24] J. Jonas Anderson, Court Capture, 59 B.C. L. Rev. 1543 (2018); Anderson, supra note 2; Anderson, supra note 9.
[25] Anderson & Gugliuzza, supra note 1, at 480–82.
[26] See Williams, Eyre & Cecil, supra note 20, at 22–23 (finding “that pilot cases are disposed of 8% faster than nonpilot cases.”).
[27] See id. at 3–7.
[28] See Bosch, supra note 21, at 19–26.
[29] See Anderson & Gugliuzza, supra note 1, at 454 (highlighting how plaintiffs can choose the division within the Western District of Texas when filing suit which means that plaintiffs can select Judge Albright by filing in the Waco Division); Klerman & Reilly, supra note 3, at 255 (highlighting how plaintiffs can choose the division within the Eastern District of Texas when filing suit which grants a high, almost certain, probability of obtaining a certain judge).
[30] See Anderson & Gugliuzza, supra note 1, at 421.