On March 12th, the U.S. Judicial Conference announced policy recommendations aimed at putting an end to “judge shopping,” the much-exploited practice by which litigants choose the judges who hear their cases. If implemented, this reform could have a significant impact on the national distribution of patent lawsuits.
In some federal districts—particularly the Western District of Texas—local rules call for all cases to proceed in the division where they are filed. As a result, in divisions where only one judge presides, plaintiffs can file cases with the knowledge that a particular judge will oversee their case. The new guidance, developed by the Court Administration and Case Management (CACM) Committee, recommends that district courts apply “district-wide assignment” for civil actions seeking to bar or mandate enforcement of a state or federal law.
When the Judicial Conference first announced its guidance, there was initial confusion as to whether it is intended to apply to patent cases. That was quickly cleared up in a memorandum sent to district court judges, executives, and clerks that stated, “The guidance set forth below applies to all civil cases, including patent cases.” The letter further notes that the CACM Committee presented a report on patent case assignment to the Judicial Conference in September 2023, which was also transmitted to Congress.
Judge shopping is exploited by actors in various areas of civil litigation and has gained particular attention recently in cases related to high-profile federal policy fights. But perhaps nowhere is the danger of judge shopping more evident than in the Western and Eastern Districts of Texas, where patent trolls exploit receptive courtrooms in an attempt to win flimsy patent infringement lawsuits. As former U.S. Representative Dick Armey explained in the Dallas Morning News in February,
“In 2023, patent trolls filed 522 of the 613 (85%) patent infringement cases brought in the Eastern District of Texas, according to a recent analysis by Unified Patents. In the Western District, we see the same story, with 467 out of 519 (90%) patent cases coming from trolls. Not only that, but the 989 cases filed in just those two judicial districts account for nearly 60% of all the patent trollAn entity in the business of being infringed — by analogy to the mythological troll that exacted payments from the unwary. Cf. NPE, PAE, PME. See Reitzig and Henkel, Patent Trolls, the Sustainability of ‘Locking-in-to-Extort’ Strategies, and Implications for Innovating Firms. cases that were brought anywhere in the country last year.”
As the only division-level judge in Waco, Texas, Alan Albright has cemented himself as the most sought after judge for patent infringement plaintiffs. What’s more, when defendants have requested transfers to other, potentially more appropriate judicial districts, Judge Albright has denied these requests with unusual consistency, so much so that the Federal CircuitSee CAFC has had to step in to order transfers out of his court and provide additional clarification to avoid future “abuses of discretion.”
Thankfully, the Judicial Conference’s guidance addresses judge shopping head-on, calling for district courts to adopt policies that align with the stance that “the random assignment of cases and ensuring that district judges remain generalists deter both judge-shopping and the assignment of cases based on the perceived merits or abilities of a particular judge.” That being said, the guidance itself is not binding, so the ball now lies squarely with district courts themselves to enact the recommendations and fulfill the promise of randomness and impartiality.
As I’ve written about extensively in Patent Progress, when patent trolls bring unreasonable infringement cases, it ties up American innovators in drawn-out, costly litigation, and stifles R&D and innovation. As was recently highlighted in the pages of the Wall Street Journal, trollAn entity in the business of being infringed — by analogy to the mythological troll that exacted payments from the unwary. Cf. NPE, PAE, PME. See Reitzig and Henkel, Patent Trolls, the Sustainability of ‘Locking-in-to-Extort’ Strategies, and Implications for Innovating Firms. lawsuits also pose a significant national security concern. Indeed, patent trolls are frequently backed by financiers based overseas, like in the recent case of a China-based investment entity funding claims against a technology manufacturer in the U.S. District Court in Delaware.
The recent guidance is a welcome first step, but more action is needed both federally and locally to prevent manipulation of our court system, with a constant eye toward transparency for litigants, defendants, the courts, and the public. If not, American innovators will continue getting bogged down in fruitless litigation on an uneven playing field, and our economy and security will be worse off for it.
