Waco may be Heating Up Again this Winter

by Dennis Crouch

Waco Texas has been a hot spot for patent infringement litigation over the past several years.  We all love “Fixer Upper”  and Baylor.  But, the Waco difference for patent cases is Judge Alan Albright. Judge Albright is a former patent litigator appointed to the bench by President Trump in 2018.  Everyone loves having a patent-knowledgeable judge and there are no  clear statistics suggesting that Albright unduly favors patentees.  However, Judge Albright is now predictable in his approach and has a “get-the-case-to-trial” focus that plaintiffs love.  Defendants often prefer to spend more time on dispositive motions — hoping to throw-the-case-out before trial.  In addition Defendants often prefer to stay litigation pending patent office IPR review.

Judge Albright is the only Federal judge in Waco, and that has made a big difference.  And, Under traditional WDTex rules an action filed in Waco will be heard by Judge Albright.  This is quite different from other courts that have multiple judges with random assignment of new cases.

Garcia Order I: Back in July 2022, Western District of Texas Chief Judge Orlando Garcia issued a major order shaking up the rules of judicial assignment.  In particular, the order states that new patent cases filed in Waco will be randomly distributed among 12 different WDTex judges.  This change somwhat slowed down new-case filing in Waco.  Cases have been distributed among the judges, although Judge Albright continues to receive about half of the new cases.  Most of the rest have been assigned to Judges Judge Pittman, Garcia, Yeakel, and Rodriguez.

Garcia Order II: In November 2022, Judge Garcia took Senior Status and stepped down from his role as Chief Judge. A few days before stepping down, Garcia issued a new order that does not expressly mention patent cases, but does indicate that Judge Albright will be assigned “[a]ll cases and proceedings in the Waco Division.”  On its face, the new order seems to overrule Order I, but that remains unclear.  The New Chief Judge Alia Moses will need to clarify.  I will note that some of the cases assigned to Chief Judge Moses under the Garcia I order have already been transferred back to Judge Albright.

The Garcia II order took effect on December 1, 2022.  Since then, 18 new patent infringement lawsuits have been filed in  W.D.Tex. (Waco) (according to PACER) with the following assignments:

• 13 are assigned to Judge Albright
• 2 are assigned to Judge Yeakel (these are related, both filed by Vilox).
• 3 are not yet assigned to any judge.

These results suggest Garcia II has changed the game and that Judge Albright will be receiving the bulk of the patent docket going forward.  We’ll be looking for a more positive statement from the court, but those tend to be rare. 

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Seriously, I don’t have HGTV at my house, but whenever we travel, my wife and I often just lay in the big hotel bed and watch Fixer Upper.