The Next Chapter: WDTX Patent Cases Since Judge Garcia’s July 25 Order

The Labor Day weekend seemed a good opportunity to catch up on the first six weeks in the “new world” of patent cases in the Western District of Texas, in the wake of Judge Garcia’s July 25 Order Assigning the Business of the Court as it Relates to Patent Cases. Obviously it’s still early days, but there’s (barely) enough data available to start forming some preliminary conclusions.

The back half of this post contains a tabulation of all patent cases filed in all WDTX Divisions since July 25, along with detailed annotations below. In the interest of readability we’ll present conclusions first, data second. By all means please peruse in detail–we’d welcome any further insights from the bar on patterns you think this data might show.

So with that said, here are our initial observations:

1. General Case Allocation: First, the basics: All 12 judges named in the July 25 Order have in fact been assigned Waco patent cases since the date of that order. Judge Albright’s numbers are a bit skewed because of “legacy” related cases. But the other 11 judges have been assigned between two and four Waco Division patent cases in the first instance–some of which have then been reassigned to other judges. (See below.)
2. Grouping Related Cases: There does not appear to be a formal public policy in place, but the WDTX judges seem to be trying to ensure that related cases end up in front of just one judge.
   • Based on Judge Biery’s reassignment order (about which see No. 3 below), the WDTX may be overlaying the District’s May 28, 2003 Amended Plan for Random and Direct Assignment of Cases in Multi-Judge Divisions (hereafter “WDTX Amended Plan”) onto the July 25 Order, such that Waco patent cases are now treated as if they were all filed within one single multi-judge division. Of most interest, Section VIII(3) of the WDTX Amended Plan provides, “A civil case is deemed related to an earlier numbered pending civil case when [inter alia] … it involves the validity or infringement of a patent already in suit in that case.” 
   • Irrespective of the reasoning, the results of related-case reassignments are not overly surprising. We identified seven series of related cases, six of which display efforts to consolidate via reassignments. In most instances, cases related to pre-July 25 Order cases that Judge Albright was already handling have been reassigned to Judge Albright. We’ll walk through in chronological order of filing: 
     • Hitel Technologies: Six cases filed in Waco since July 25, related to a series of 23 cases (10 still active) pending before Judge Albright. New filings all assigned to Judge Albright, including one reassigned by Judge Yeakel. See annotation [L].
     • Focus Global: First exception to the rule. Seven cases filed in Waco since July 25, but asserting two distinct patents on a 4/3 basis. Only one prior related case, long since dismissed. Five of the seven cases already dismissed. No reassignments. See annotations [J1]-[J2].
     • Innomemory: Seven cases filed since July 25 (three in Austin, three in San Antonio, and one in Waco), related to a series of eight prior cases in front of Judge Albright. New filings all assigned to Judge Albright, with four Austin and Waco cases reassigned to Judge Albright by Judge Pitman, and three San Antonio cases reassigned by Judge Garcia. See annotation [M].
     • Healthness: Four cases filed in Waco since July 25; not related to any prior cases. First caption assigned to Judge Cardone; two of three other cases reassigned to Judge Cardone by Judges Garcia and Moses. Fourth case (involving defendant Decathlon SA) remains pending before Judge Yeakel–is another reassignment coming soon?
     • KT Imaging: Five cases filed in Waco since July 25, related to a series of six prior cases in front of Judge Albright. New filings all assigned to Judge Albright in the first instance. See annotations [N1]-[N4]; see also No. 2(c) below.
     • Bassfield IP: Second exception to the rule. Four cases filed in Waco since July 25, relating to a series of twelve prior cases in front of Judge Albright, all but one since dismissed (with the twelfth settled September 1). First caption assigned to Judge Pitman; two of three other cases reassigned to Judge Pitman by Judges Biery and Pulliam.  Fourth case (involving defendant Paradies Lagardere) remains pending before Judge Cardone–is another reassignment coming soon? See annotation [H].
     • Halliburton: Two cases filed in Waco since July 25, relating to one prior litigation pending before Judge Albright. Both assigned to Judge Albright on filing. Here the plaintiff affirmatively invoked the WDTX Amended Plan in a filed Notice of Related Case. (Mark is counsel of record in this case, so he has studiously avoided providing comment on this portion of this post.) See annotation [K].
   • It seems possible that the District has changed its related-case practices between the week of August 15 and the week of August 22. Up through August 19 all cases appear to have been assigned randomly upon filing and then reassigned as needed. But the August 22 KT Imaging cases, August 31 Hitel cases, and September 1 Halliburton cases (see above) were all assigned to Judge Albright in the first instance, thus obviating the need for any further reassignments. See annotations [L] & [N1]-[N4].
3. Transfer & Reassignment Orders: Six of the 12 judges named in the July 25 Order have now transferred and/or reassigned patent cases randomly assigned from their respective dockets under the July 25 Order to another judge’s docket. In all instances this occurred in connection with related series of cases, as detailed at No. 2 above. But aside from that common theme, none of these six judges have adopted the same practice as any other judge. The individual orders are summarized in annotations [A]-[G] below, and range from Judge Biery’s fairly detailed order expressly citing to the WDTX Amended Plan, to several judges’ orders generally referencing mutual consent of the respective chambers, to Judge Moses’s order that simply notes the fact of the transfer without explanation.
4. Non-Waco Divisions of WDTX may be seeing a modest boost in their case numbers. Between July 25 and Labor Day weekend, plaintiffs initiated 12 cases in non-Waco WDTX courts (nine in Austin, three in San Antonio). For context, looking at the same late-July-to-early-September range as as our data set below for each of 2019-2021 (the three prior years in which Judge Albright was then on the Waco bench), prior years’ filings were just four or five cases in each of those three years. (Small sample size, obviously, so we’re not trying to prove up a statistically significant variation here–at least not yet.)
5. Where We Are Now: After accounting for reassignments, how many patent cases has each WDTX judge has been assigned to preside over? Here’s a short table, labeled by pending Division (Waco/Austin/San Antonio), and whether the cases in question are part of a related series of cases, or effectively independent/unrelated. (Note that a handful of cases have already been dismissed by the parties, so the figures below do not represent active cases assigned to each judge.)  

And that’s enough for the first pass. Here’s the full array of data in a much longer table, for your further analysis and enjoyment:

NOTES

• Orders transferring/reassigning cases:
  • [A] (J. Yeakel) 8/4/22 Transfer Order (ECF No. 7) states that “[i]t appears to the court that [this case] should be transferred … [to Judge Albright], both judges having consented to the transfer.”
  • [B] (J. Garcia) 8/22/22 consolidated Order (ECF No. 7 in all three cases) states that “[b]oth Judges have consented to the transfers.”
  • [C] (J. Biery) 9/1/22 Order of Transfer and Reassignment (ECF No. 6) cites to WDTX Amended Plan § VIII(3) (“A civil case is deemed related to an earlier numbered pending civil case when … it involves the validity or infringement of a patent already in suit in that case.”).
  • [D] (J. Garcia) 8/24/22 Order Transferring Case (ECF No. 6) states that “[b]oth Judges have consented to the transfer.”
  • [E] (J. Moses) 8/31/22 Order of Transfer (ECF No. 8) states, “[i]t is hereby ORDERED that the above-styled case shall be REMOVED from the undersigned Judge’s docket and TRANSFERRED immediately to the Waco docket of the Honorable Kathleen Cardone…”
  • [F] (J. Pitman) 9/1/22 simultaneous Transfer Orders (ECF No. 8 in -831 case and ECF No. 7 in remaining three cases) state that “[i]t appears to the court that [this case] should be transferred … [to Judge Albright], both judges having consented to the transfer.”
  • [G] (J. Pulliam) 9/1/22 Transfer Order (ECF No. 6) relies on “judicial economy, and … the mutual consent of both judges.”
• Related cases:
  • [H] Plaintiff Bassfield filed before Judge Albright 12 prior cases involving the same asserted US Pat. No. 6,641,053 (all but one dismissed before recent 8/30/22 filings–and last case indicated settlement in 9/1/22 filing).
  • [J1] One of three recent Focus Global WDTX cases asserting US Pat. No. 6,920,494 (two settled since filing). Prior case No. 6:20-cv-00428-ADA involving same patent (though different prior assignee) dismissed 7/24/20. No reassignments.
  • [J2] One of four Focus Global WDTX cases asserting US Pat. No. 6,978,301 (three settled since filing). No reassignments.
  • [K] Plaintiff Halliburton filed Notice of Related Cases referencing pending Case No. 6:21-CV-00367-ADA-DTG, and relying on WDTX Amended Plan (“In this case, Halliburton Plaintiffs assert [certain] of the same patents that were previously filed in the Waco Division albeit on a different set of infringing systems and methods…. The remaining patents are directed at similar technology that is being litigated in the 367 Case. The Court in the Waco Division has already construed claims of each of the 367 Asserted Patents. The Court in the Waco Division had also considered several motions, including discovery motions, and resolved disputes between the parties relating to the technology at issue in the 367 Asserted Patents.”)
  • [L] Plaintiff Hitel filed before Judge Albright 23 prior cases involving the same asserted US Pat. No. 7,689,617 (12 still pending as of recent 7/28/22 filings, 10 still pending as of recent 8/31/22 filings).
  • [M] Plaintiff Innomemory filed before Judge Albright 6 prior cases involving the same asserted US Pat. No. 6,240,046 (all but one still pending as of recent 8/17-18/22 filings) and 8 prior cases involving the same asserted US Pat. No. 7,057,960 (all but two still pending as of recent 8/17-18/22 filings).
  • [N1] Plaintiff KT Imaging filed before Judge Albright 6 prior cases involving the same asserted US Pat. No. 8,004,602 (all dismissed before recent 8/22/22 filings).
  • [N2] Plaintiff KT Imaging filed before Judge Albright 5 prior cases involving the same asserted US Pat. No. 8,314,481 (all dismissed before recent 8/22/22 filings).
  • [N3] Plaintiff KT Imaging filed before Judge Albright 4 prior cases involving the same asserted US Pat. No. 6,876,544 (all dismissed before recent 8/22/22 filings).
  • [N4] Plaintiff KT Imaging filed before Judge Albright 5 prior cases involving the same asserted US Pat. No. 7,196,322 (all dismissed before recent 8/22/22 filings).
• Cases not transferred/reassigned:
  • [P] Errant/reversed full transfer, per 7/26/22 docket entry (“This case is now back on the Waco docket, assigned to the Honorable Alia Moses. Docketing will commence under case 6:22-cv-811 AM.”).
  • [Q] Other related cases have since been reassigned to judge handling first-filed case.
• Other:
  • [R] Also referred to Magistrate Judge Gilliland.