Federal Judge Seeks Patent Cases

71 Pages Posted: 15 Oct 2020 Last revised: 2 Mar 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: 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

Suggested Citation

Anderson, Jonas and Gugliuzza, Paul R., Federal Judge Seeks Patent Cases (August 6, 2020). 71 Duke Law Journal, Forthcoming, 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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