Former Patent Litigator Becomes Federal Judge And Begins Advertising For Patent Trolls To Come To His Court (And They Have In Droves)

from the forum-selling dept

For years, you may recall that we would write about the insane nature of forum shopping for patent trolls, in which the trolls would flock to the federal courts in East Texas. Going back nearly 15 years, we wrote about how East Texas courts became grand central for patent troll cases, leading to all sorts of sketchy behavior. There are a bunch of empty office buildings setup in small Texas cities (mainly Marshall and Tyler) just to "pretend" to have offices there. Companies engaged in many patent cases started to try to suck up to residents of those small cities, in case they might be on a jury. TiVo literally bought a "Grand Champion Steer" just weeks before a jury was set to rule on a massive TiVo trolling case. Samsung threw so much money at the local "Stagecoach Days" event that it was renamed "Samsung Stagecoach Days," and built a Samsung ice rink right next to the courthouse in Marshall.

For years, people pressured Congress to fix this mess, but instead, the Supreme Court finally stepped in, with the TC Heartland ruling, and said that the proper jurisdiction should be where defendants actually are incorporated. Of course, this seemed to have the reverse effect -- as companies no longer want to be in East Texas. Apple shut down its stores there to avoid the jurisdiction.

Of course, if you thought that the judges would go quietly, you'd be wrong. It's always felt like a few judges in East Texas loved the reputation they'd built up as being super friendly to patent trolls. For a while it was Judge T. John Ward. And when he left the bench (to become a patent lawyer, natch), Judge Rodney Gilstrap stepped into the gap he left. He even tried to ignore the Supreme Court's TC Heartland decision (though the Federal Circuit appeals court was not impressed).

However, as Patent Progress notes, there's a new judge vying to be at the top of the patent troll's Christmas list, and he's in West Texas. Judge Alan Albright, a former patent litigator, was appointed to the bench in 2018 -- and he literally went on a tour to convince companies to bring patent cases in his court:

U.S. District Judge Alan Albright and attorneys who predicted last year that Waco’s federal court would become a hotbed of patent and intellectual property litigation missed their prediction just a bit.

With Albright traveling the country drumming up business and patent attorneys spreading the word that Waco’s new federal judge, a longtime patent litigator, will provide the expertise to create an efficient and welcoming environment in Waco, the response in the past year actually exceeded those predictions.

Since Albright took office in September 2018, more than 250 patent cases have been filed in the federal Western District of Texas, which includes Waco. That total eclipses the number for the previous four years combined and has made the Western District among the busiest in the country for patent cases.

It's hard to read that and not think... that's fucked up. A judge should not be "travelling the country drumming up business." There's a reason that forum shopping is a bad idea -- and this is even worse: it's forum selling. As that article notes, more and more patent law firms are now setting up business in Waco, near Albright's court, and even the troll firms in East Texas are heading just a bit west:

Waco law firm Haley & Olson announced in March it was combining forces with Mann, Tindel and Thompson, an East Texas firm that specializes in patent litigation, to capitalize on the new focus of the Waco federal court.

That should be seen as a problem, but instead, it seems to be business as usual in the federal courts of Texas.

Two law professors have now come up with a new paper delving into this troubling trend, which kicks off with a pretty telling mocked up Craigslist ad, which they say "startlingly... accurately portrays what is happening right now in the U.S. District Court for the Western District of Texas."

The two professors -- J. Jonas Anderson and Paul Gugliuzza -- lay out the problems pretty starkly:

One judge, appointed to the court less than two years ago, has been advertising his district—through presentations to patent lawyers, comments to the media, procedures in his courtroom, and decisions in patent cases—as the place to file your patent infringement lawsuit. And he has succeeded. In 2018, the Western District received only 90 patent cases—a mere 2.5% of patent suits nationwide. In 2020, the Western District is on track to receive more than 800—the most of any district in the country. Importantly, these suits are overwhelmingly filed by so-called patent trolls—entities that don’t make any products or provide services but instead exist solely to enforce patents.

The centralization of patent cases before a single judge, acting entirely on his own to seek out patent litigation, is facilitated by the Western District’s case filing system, which allows plaintiffs to choose not just the court but the specific judge who will hear their case. These dynamics—a judge advertising for patent cases and plaintiffs shopping for that judge—undermine public confidence in the impartiality of the judiciary, make the court an uneven playing field for litigants, and facilitate the nuisance suits patent trolls favor.

As they note, it seems like an easy thing to fix if Congress had the will:

Two reforms would help solve this problem: first, district judges should—by law—be randomly assigned to cases and, second, venue in patent cases should be tied to geographic divisions within a judicial district, not just the district as a whole.

The article even details how in the midst of the pandemic, both Judge Albright and Judge Gilstrap appear to be competing to rush through as many patent cases as possible, in person, so that more trolls will file in their courts:

The COVID-19 pandemic has upended American life. Millions are unemployed. Many who still have jobs—grocery store workers, delivery drivers, healthcare providers—risk their lives every day. Those of us who are privileged have learned to work entirely from home; our biggest risk is a dancing child or stray pet wandering into the background of a Zoom meeting. COVID has disrupted the practice of law, too. Even the U.S. Supreme Court has yielded, holding oral arguments by telephone and broadcasting them live for the first time. The U.S. Court of Appeals for the Federal Circuit, which hears appeals of all patent cases nationwide, has likewise suspended in-person oral arguments until further notice.

But Judge Albright appears determined to forge ahead with patent litigation as usual. Judges in other patent-heavy district courts are, too. Though some judges have compromised and held patent proceedings on Zoom, Chief Judge Rodney Gilstrap of the Eastern District of Texas, who, until last year, heard more patent cases than any judge in the country, recently denied a defendant’s motion to delay an in-person jury trial slated to begin on August 3, quoting poet Robert Frost’s idiom that “the best way out is always through.” What is going on with these judges?

They are in the midst of a vigorous competition to attract patent cases to their courtrooms. As this article shows, Judge Albright is winning. And this court competition is not good for the patent system or the court system more broadly.

As the article notes, this forum selling is the unexpected flip side of historical forum shopping. And Judge Albright seems to have figured out how to sell his court like no judge before. One of the things he'll even do is let patent holders sue in his court in Waco, transfer the case to the more convenient court in Austin... but still have Judge Albright preside over the case. Here's a simple chart of how this has played out in practice:

And again, nearly all of those are going to a single judge. If you don't see that as a problem, well, then you're probably a patent troll. Judge Albright isn't particularly shy about this either:

Immediately upon his appointment as a district judge in 2018, Judge Albright went on a media blitz, letting everyone know that his court would welcome patent litigation. The Waco Tribune-Herald reported that Judge Albright “let it be known in no uncertain terms that he would like his Waco courtroom to become a hub for IP cases.” He attended dinners for patent litigators and patent owners to extoll the virtues of trying patent cases in Waco. Judge Albright stated that he took the position in Waco because he “‘thought it was the perfect place to try and establish a serious venue for sophisticated patent litigation.’” Most tellingly, he gave a presentation at the 2019 annual meeting of the American Intellectual Property Law Association titled, “Why You should File Your Next Patent Case Across the Street from the ‘Hey Sugar,’” referring to a candy store near his Waco courthouse.

You'd think a judge would recognize just how bad this looks, but I guess not.

As the paper details, Judge Albright is the only judge in Waco, so if you file there, you're guaranteed to get him, and he's made it clear that he'll personally handle all the details of patent cases, farming out the grunt work on other cases to magistrate judges:

Secure in the knowledge that patent cases filed in Waco will be heard by Judge Albright, patent plaintiffs are even more incentivized to file in Waco because of Judge Albright’s unique assignment orders to his magistrate judge. Judge Albright assigns all cases to his magistrate to handle all non-dispositive motions—except in patent, copyright, and certain habeas corpus cases. Thus, patent plaintiffs know that Judge Albright will be personally involved in every aspect of the litigation and won’t be distracted with other, non-patent cases on his docket. That level of attention from a district judge during all stages of litigation is exceedingly rare. Delaware, for example, heavily uses magistrates in patent cases. Even the Eastern District of Texas relies on magistrates to handle important motions and pre-trial hearings, including claim construction.

For plaintiffs, choosing the Waco Division could not be simpler. Plaintiffs simply select “Waco” from a drop-down menu of divisions on the Western District’s electronic case filing system and—voila!—the case is automatically assigned to Judge Albright.

The paper goes on to detail more and more and more crazy examples of just how blatant this all is -- and why it's so problematic. At a time when there is so much else going on, I recognize that this might not seem like a priority, but it's insane. A judge is literally shopping for cases -- cases in which he's hardly an unbiased observer, having been a patent litigator before being appointed to the bench. As we've discussed at great length over the years, the closer judges are to patent lawyers, the more likely they are to support patent trolling, and not see the problems with overly broad patents, or patent trolls shaking down actual innovators.

The paper also details how Judge Albright's practices aid patent trolls (which may explain why 85% of these patent cases filed in his court are from trolls). He pushes the cases to move faster, which puts much more pressure on companies to settle to avoid the expense of litigation. And, Judge Albright is much faster than even Judge Gilstrap, whose court in Marshall was regularly called the "rocket docket" for its speed in handling patent troll cases.

And what about that TC Heartland decision that finally started pressuring Gilstrap in East Texas to transfer cases to their proper venue?

Since taking the bench, Judge Albright has likewise staunchly refused to transfer cases out of the Western District. As of July 7, 2020, he has decided thirteen motions seeking transfer away from the Western District under § 1404(a); he has denied eleven. In fact, in a recent order, Judge Albright effectively told Apple—which has been sued at least ten times in cases assigned to Judge Albright and regularly seeks to have those cases moved to the Northern District of California—to stop filing transfer motions.

They do note that the Federal Circuit recently ordered Albright to transfer one of his cases, involving Adobe, and threw some shade at his current failure to regularly transfer cases. Hopefully that means it starts pushing back on him more often.

Again, there's a lot more in the paper, and it's all crazy that this is allowed in a federal court. Congress has many things on its plate, but it should do something to fix this jurisdiction selling by Judge Albright.

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Filed Under: alan albright, austin, east texas, marshall, patent trolls, patents, rodney gilstrap, texas, tyler, waco, west texas


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  • icon
    aerinai (profile), 5 Oct 2020 @ 9:28am

    Fair and impartial? What?

    How is it that a judge can advocate, in advance, about rulings he hasn't yet received? Couldn't there be a lawsuit against these cases saying that the judge was obviously biased, using his own power points against him as evidence?

    I don't understand how that is even close to legal.. When you have judges being told they can't be a comedian (https://patch.com/pennsylvania/moon/judge-cant-moonlight-as-a-comedian-court-says) but they can actively advocate businesses to venue shop? Talk about a screwed up legal system we got here.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 5 Oct 2020 @ 10:04am

      Re: Fair and impartial? What?

      If there was ever a justified reason to ask a different judge to be assigned a case 'they are openly sympathetic to a particular side, to the point that they advertised their court to that side on a national level' would seem to be it.

      reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 5 Oct 2020 @ 9:42am

    Of the corporations, by the corporations, for the corporations.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 5 Oct 2020 @ 10:02am

    Follow the money

    Unless judges get paid by the case(which would be problematic on it's own) I can't think of a non-corrupt reason that he would be so interested in making sure that as many patent trolls go to his court as possible that he would go out of his way to advertise it to the parasites, leaving me to wonder if he's getting something more than just warm fuzzies by having an IP extortion friendly court, whether that be directly or to 'encourage local investment' like what happened in east texas.

    On the 'plus' side it would seem that some judges just really don't want any tech companies to have any presence in texas at all, because I foresee a nice little exodus of companies out of the area so that they are less likely to deal with that parasite friendly judge.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Oct 2020 @ 11:27am

      Re: Follow the money

      Well, I have heard that ego can be a considerable motivator. He may even believe he is doing a "good thing" and that patents are always fair and merited and patent trolls are justified in their lawsuits. By the same token, I may see a pig flying by Tomorrow.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 5 Oct 2020 @ 11:40am

        Re: Re: Follow the money

        I may see a pig flying by Tomorrow.

        And a patent suite the day after, by a troll who predicted the development, without knowing how to achieve it.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Oct 2020 @ 11:25am

    I've said in the past, that if these Patent Trolls have to take their case to the East Distric Court of Texas, they don't have a leg to stand on anywhere else.

    reply to this | link to this | view in chronology ]

  • icon
    JustMe (profile), 5 Oct 2020 @ 2:15pm

    Did I miss the stats?

    What does the Win / Loss column look like for patent trolls in his jurisdiction? If it isn't at least close to 50/50 then yeah, it should be worth the time to figure out if he is profiting (does he own land or lease office space in the area, any new houses or cars or trips in his family?). Also, who paid for that road trip around the country - because it is hard to see how that comports with the mission of the court?

    reply to this | link to this | view in chronology ]

  • icon
    Texas Nerd (profile), 5 Oct 2020 @ 5:06pm

    No stats yet

    Albright is holding his first patent trial this week, so there are no win-loss stats yet. He is drawing patent cases because he enjoys them and feels like he is providing a service with clear rules, aggressive schedules, and subject matter expertise.

    The real question is whether filings continue at these rates over time and whether the quality of cases is high or low. If he dismisses or grants summary judgment on poor quality cases, the new "rocket docket" could well be a valuable service to patent litigants.

    There is no reason to believe he is on the take somehow. That happens from time to time with federal judges, but they get prosecuted, impeached, and imprisoned. In the Eastern District of Texas judges retire to become mediators and charge handsome fees to resolve cases before trial because they have experience with the procedures and demeanor of the current judges.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 5 Oct 2020 @ 11:06pm

      Can't tell if serious and joke, or just joking...

      Albright is holding his first patent trial this week, so there are no win-loss stats yet.

      Unless you're writing from the past or he's really bad about actually wrapping up cases no, no he is not, as the last quote in the article mentions multiple instances of him refusing to follow the SCOTUS ruling regarding proper venue by refusing to transfer cases out to such an extent that a higher court even had to order him to do so in one of them, calling his refusal to grant the motion to shift venue 'a clear abuse of discretion'.

      He is drawing patent cases because he enjoys them and feels like he is providing a service with clear rules, aggressive schedules, and subject matter expertise.

      From the paper quoted in the article:

      Importantly, these suits are overwhelmingly filed by so-called patent trolls—entities that don’t make any products or provide services but instead exist solely to enforce patents.

      The only 'service' he's providing is to parasitic scum who leech off of people that are actually doing something, and when the world would be a better place if you stopped doing what you consider to be your job that's probably a bad sign.

      The real question is whether filings continue at these rates over time and whether the quality of cases is high or low.

      See reference to patent trolls and how they overwhelmingly make up his cases numbers for the response as to the 'quality' of his cases.

      If he dismisses or grants summary judgment on poor quality cases, the new "rocket docket" could well be a valuable service to patent litigants.

      And he could also dump a pot of literal leprechaun gold in the laps of the victims of patent trolls, but I wouldn't put much stock in that possibility either.

      In the Eastern District of Texas judges retire to become mediators and charge handsome fees to resolve cases before trial because they have experience with the procedures and demeanor of the current judges.

      Yeah, that's why patent trolls loved east texas before the judicial hammer was brought down, the judges there were just so very experienced...

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Oct 2020 @ 5:47pm

    Sounds like grounds for appeal on every case he ever hears.

    Of course, i see the rush now, clearly designed to destroy certain parties before the appeals courts can hear any cases and catch up on backlog generated by this ploy.

    reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 5 Oct 2020 @ 6:24pm

    He must be Roy Bean reincarnated; he should change his name.

    reply to this | link to this | view in chronology ]

  • icon
    crazy_diamond (profile), 5 Oct 2020 @ 10:18pm

    Are you FKM?

    I've learned he lingo. Corruption like no one has ever seen before. Trust nothing involved with a government agency tasked with the administration of "justice'.

    reply to this | link to this | view in chronology ]

  • identicon
    billybob, 13 Oct 2020 @ 9:27am

    stupid people

    All of you are dumb, you don't understand how law works and think there is some grand conspiracy going on, there isn't. There is nothing illegal about a district court being geared towards a particular type of law. You could make the same argument that the Texas Northern District only cares about criminal cases and locking up criminals to benefit private prisons. In reality, that's just where all those cases end up because there is more crime.

    reply to this | link to this | view in chronology ]


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