WACO – Pick a day, go online and scope out Judge Alan Albright’s docket – there’s a good chance nothing but patent infringement cases will fill the screen.
Albright, a former patent attorney who took the bench in 2018, is the only district judge in the Waco division of the Western District of Texas. And in the three years he's been on the bench, his docket has grown to the point where he is presiding over nearly 20 percent of all infringement suits filed in the U.S.
But the city of Austin - also located in the Western District - is ripe with innovators that can be lucrative targets for patent trolls, according to some groups worried that litigation could choke out the blossoming tech hub.
Joshua Landau, a patent litigator at the Computer & Communications Industry Association, says roughly 85 percent of the patent cases in Albright’s court are lawsuits brought by non-practicing entities (NPEs for short).
NPEs are commonly referred to as patent trolls.
“All NPEs do is file litigation,” Landau said. “The only ones they really employ are lawyers.”
Often backed by hedge funds, NPEs buy up patents for the sole purpose of filing lawsuits against tech companies, such as Apple, Intel, Dell and Google for example.
As long as a tech company is located anywhere within the Western District, an NPE can file a patent suit in any of the district’s divisions. And according to the numbers, the Waco Division is the choice venue for patent trolls.
A Lex Machina report, released back in March, shows the Western District saw the most patent cases overall in 2020 with 857, a good number of which were heard in Albright’s court.
Albright had practiced 20 years as a patent litigator. In the last three years, his patent caseload jumped from 28 in 2018 to 793 last year, the report states
To sum it up, Judge Albright heard 19.5 percent of all U.S. patent cases in 2020 – a trend that has continued in 2021 so far.
“You’re not supposed to be able to pick your judges,” Landau said. “Patent trolls are trying to game the system and Judge Albright is seemingly going along with it.”
Landau thinks NPEs view Waco as a “more favorable venue” and that the “huge increase” in patent cases in Albright’s court is due to the judge “putting forth rules that are plaintiff friendly.”
He says Judge Albright pretty much defers anything not patent related, pushing his other cases onto a magistrate judge.
“From what Judge Albright has said publicly, he does want these patent cases in his court,” Landau said. “He’s been really focused on patent litigation and the rest is being shoved aside.”
Albright disagrees.
Albright, who says he knows a lot of the lawyers in the field of patent litigation, thinks his court has become such a draw for infringement suits because of his expertise.
The judge also thinks Austin morphing into a tech magnet is the reason why so many patent cases are flooding the Western District.
“Texas has become very attractive to companies in other states,” Albright said. “I’m very blessed to have a position in a district that is so robust.”
After taking the bench, Albright says one of the first things he did was put together an ad hoc committee to help craft rules and guidelines for patent litigation in his court.
“I had a lot of lawyers, on both sides, helping me,” Albright said. “The committee is as transparent as I can make it – anyone can join.”
Albright says he’s worked hard to “strike a balance” between all parties to move cases through his court as quickly as possible.
“Everything I’ve done is to try to be as fair as possible,” he said. “I think it’s important to set cases for trial as soon as possible. No one benefits from litigation staying in the system for years and years.”
Albright also says he has had almost no jurisdiction challenges in his court, but that there are, however, convenience issues that crop up. When that happens, he’ll listen to all those involved to see what the best solution involved is, which could include transferring a case out of Texas.
And even though patent cases are pouring into the Waco Division at an astonishing rate, Albright says his court is not exclusively tailored for infringement litigation.
“I don’t think of myself as a specialized court,” Albright said. “I have a lot of different cases I handle. I don’t see myself as different than any other Article 3 judge.”
Creating a specialized court for patent litigation in Waco may not have been Judge Albright’s intention, but Landau believes “that’s what is happening” and it may cost Texas in the long run.
Long before Albright began hearing 20 percent of all patent infringement cases filed in the nation, the Eastern District of Texas, rather than the Western District, was the preferred home for patent trolls.
Bombarded with thousands of patent suits every year, the Eastern District, dubbed the “rocket docket” in some circles, became a venue where juries routinely doled out monstrous verdicts against tech companies.
In early 2019, Apple announced it was closing up shop, literally, in the Eastern District in hopes of escaping patent trolls.
Now, Landau fears a similar pattern may soon emerge in the Western District.
Earlier this year, a jury delivered a record-breaking $2.18 billion verdict against Intel in Albright’s court. A subsequent patent trial against Intel ended more favorably for the company last month, but another trial on similar patented technology is still on the books for June.
Landau says fending off patent trolls in court is “incredibly expensive” and that it’s a problem for all industries – not just tech companies.
“It’s not just a tech issue,” Landau said. “From automotive to retail, every American industry is being pulled in.”
Whether it’s diverting money meant for research and development or pulling employees away from their jobs for court-related proceedings, litigation brought by patent trolls negatively impacts companies in numerous ways, says Landau.
“For the ones actually innovating, having to litigate these cases is a drag on their day to day life,” Landau said. “Every second they have to spend talking to me is time stolen from doing what they want to do most – innovate.”
Landau doesn’t know if companies are ready to flee the Western District yet, like Apple did in Eastern District, but he does think the spike in patent litigation has made companies hesitant to keep investing in Texas.
Albright’s love of patent litigation has even sparked a website, Expose Patent Trolls, dedicated to informing Texans that NPEs have “found a welcoming court in Waco.”
“Patent trolls threaten technological innovations that create jobs and spur economic growth,” the site states. “They reap big money from pressing dubious charges of patent infringement against real innovators and job creators.
“And they’re doing it right here in Texas.”
The Computer and Communications Industry Association, Landau’s employer, paid for the website.
CCIA members employ almost one million workers and generate more than $540 billion in annual revenue. The Association’s members include computer and communications companies, equipment manufacturers, software developers, service providers, re-sellers, integrators and financial service companies.