Federal Judge Seeks Patent Cases
70 Pages Posted: 15 Oct 2020 Last revised: 16 Oct 2020
Date Written: August 6, 2020
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 right now in the Western District of Texas. 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. 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.
Keywords: patent law, civil procedure
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