Federal Judge Seeks Patent Cases

79 Pages Posted: 15 Oct 2020 Last revised: 26 Oct 2021

See all articles by Jonas Anderson

Jonas Anderson

American University - Washington College of Law

Paul R. Gugliuzza

Temple University - James E. Beasley School of Law

Date Written: October 26, 2021

Abstract

Imagine the following advertisement popping up on Craigslist: "FEDERAL JUDGE SEEKS PATENT CASES! (Waco) — Former patent litigator, recently appointed to the U.S. District Court for the Western District of Texas, longs for the intellectual challenge of a good patent fight. Can promise special procedural rules, efficient discovery, and speedy trials. Dismissal, stay, or transfer of case extremely unlikely. File in Waco and get the patent court you've always dreamed of!"

That probably seems bizarre. Still, and startlingly, it accurately portrays what’s happening in the Waco Division of the U.S. District Court for the Western District of Texas. One judge, appointed to the Western District only three years ago, has been advertising his courtroom through presentations to patent lawyers, comments to the media, procedural practices, and decisions in patent cases as the place to file a patent infringement lawsuit. That advertising has succeeded. In 2016 and 2017, the Waco Division received a total of five patent cases. In 2020, nearly eight hundred patent cases—more than 20 percent of all patent cases nationwide—were filed there.

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 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. Two common-sense reforms would reduce the harms of judge shopping: (1) district judges should, by law, be randomly assigned to cases, and (2) venue in patent cases should be tied to divisions within a judicial district, not just the district as a whole.

Keywords: patent law, civil procedure

Suggested Citation

Anderson, Jonas and Gugliuzza, Paul R., Federal Judge Seeks Patent Cases (October 26, 2021). Duke Law Journal, Vol. 71, p. 419, 2021, Available at SSRN: https://ssrn.com/abstract=3668514 or http://dx.doi.org/10.2139/ssrn.3668514

Jonas Anderson

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

Paul R. Gugliuzza (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

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