Two U.S. senators have alleged U.S. District Judge Alan Albright of Waco is misusing his power to make his federal courtroom a hotbed of patent and intellectual property litigation and are asking for a study about where lawsuits can be filed.
In a letter to U.S. Chief Justice John Roberts, Sen. Patrick Leahy, D- Vermont, and Sen. Thom Tillis, R-North Carolina, criticize the “extreme concentration of patent litigation” in Albright’s federal court and the “unseemly and inappropriate conduct that has accompanied this phenomenon.”
Albright, who took office in September 2018, made no secret after his appointment that his ultimate goal was to turn the Waco court into the nation’s leading venue for patent cases. After 15 months in the position, Albright told the Tribune-Herald the response to his invitations for attorneys to file patent cases in his court, and the effect of attorneys spreading the word, exceeded his expectations.
The letter from Leahy and Tillis says about a quarter of all U.S. patent litigation is pending before Albright, who is one of about 600 federal district court judges.
“We understand that a single judge in this district has openly solicited cases at lawyers’ meetings and other venues and urged patent plaintiffs to file their infringement actions in his court,” and has “repeatedly ignored binding case law and abused his discretion in denying transfer motions,” the senators wrote.
In the two years before Albright’s appointment, the Waco court averaged one patent case a year, according to the letter. This year, the court is on track to hear more than 900 patent cases, it says. By choosing the Waco court, patentees can assure Albright will hear their case.
“When the requested division has only one judge, this allows plaintiffs to effectively select the judge who will hear their case,” the senators wrote. “We believe this creates an appearance of impropriety which damages the federal judiciary’s reputation for the fair and equal administration of the law.”
Leahy and Tillis are the chair and ranking member, respectively, of the Senate Judiciary Committee’s Subcommittee on Intellectual Property. They wrote that the U.S. Court of Appeals for the Federal Circuit has been “compelled to correct his (Albright’s) clear and egregious abuses of discretion” on transfers at least 15 times in the past two years.
Albright declined comment through a staff member.
The Tribune-Herald asked Albright in January last year why, with a fresh lifetime appointment and a healthy civil and criminal docket, he was going out of his way to solicit more cases, which equates to more work for him.
“I didn’t come to this job to retire,” Albright said last year. “I came to this job and I took this job in Waco because I thought it was the perfect place to try and establish a serious venue for sophisticated patent litigation, and it has proven to be just that.
“There is nothing I enjoy more than working on patent cases. I think, by and large, the lawyers are exceptional and the issues before me are always intellectually challenging. I couldn’t imagine a better docket than what I’ve got. I feel unbelievably lucky.”
David Henry, who has taught patent law and litigation at the Baylor University Law School for 27 years, and other attorneys predicted the Waco court’s intellectual property business was on the verge of a major expansion, especially in the wake of a U.S. Supreme Court ruling that narrowed the scope of venues lawyers can choose for filing cases.
With all the high-tech industry in Austin, which also is in the federal Western District of Texas, the environment was ripe for intellectual property litigation to take off in this area, the attorneys said.
Before, the East Texas town of Marshall was considered the mecca for patent litigation after Judge T. John Ward, a Baylor Law graduate, created a friendly environment for such cases in the federal Eastern District of Texas.
But the Western District has become the new leader, and attorneys say Albright, who excelled in patent litigation for more than two decades, and the venue-limiting high court ruling, are the reasons.
“There was literally no way I could have predicted that the growth would happen with the speed that it happened,” Albright told the Tribune-Herald last year. “I would have been very pleased and felt very successful if we had been half as successful in terms of the numbers. I am unbelievably lucky, but we have worked hard.”
Henry also heads the patent litigation section of Gray Reed, one of at least eight law firms that have opened offices in Waco in the past two years to take advantage of the bustling Waco patent docket. Henry said there is an “entrenched mentality” in Washington, D.C., that is “anti-Texas.”
“I think these actions are largely out of resentment of the emergence of another Texas-based patent-centric court docket,” Henry said of the senators’ letter. “Some have said it is somehow unfair or inappropriate that certain courts should attract patent litigants over some others. Having been a patent litigant for 35 years, I can tell you there is a huge difference when the court and clerks and staff understand how to handle patent cases. In courts that never handle patent cases, you are trying to educate jurors and the court and staff at the same time.”
Henry said parties on both sides of litigation benefit when a judge is experienced in such a specialized area of the law, like Albright, and shows interest in handling the cases.
“I am all for target courts, courts that immerse themselves,” Henry said. “I think it benefits everybody in a patent case, and I know Judge Albright will keep doing what he thinks is right and under oath to do. If people want to take pot shots, so be it.”
The senators’ letter asks Roberts to direct the Judicial Conference of the United States, the federal court system’s policymaking body, “to conduct a study of actual and potential abuses that the present situation has enabled,” to consider making reforms, and to make legislative recommendations.
This story has been corrected to indicate the senators' letter says the U.S. Court of Appeals for the Federal Circuit is the body that has ruled against Albright's case-transfer decisions 15 times in the past two years.