As patent litigators are well-aware, the Western District of Texas and the District of Delaware, the two most popular venues for patent litigation, each issued orders regulating litigation in their districts in 2022. So as of early 2023, what effect have those orders had on patent filings?
Western District of Texas
On July 25, 2022, WDTX's Chief Judge Orlando L. Garcia issued a randomization order, requiring all civil cases filed in the Waco Division to be randomly assigned to 12 district judges from WDTX's various divisions. On December 16, 2022, the new Chief Judge Alia Moses issued a new order, removing Judge Frank Montalvo from the list of patent judges but otherwise affirming the June randomization order. With the randomization in place, it was anticipated that WDTX could lose its appeal because assignment to Judge Albright would no longer be guaranteed.
The data has confirmed this prediction. In January 2022, a total of 269 patent cases were filed in all district courts nationwide. Among them, 64 cases were filed in WDTX (representing 23.8% of total cases), with 63 filed in Waco and assigned to Judge Albright.
In January 2023, a total of 242 district court patent cases were filed nationwide, with 36 cases filed in WDTX (representing a mere 14.9% of total cases). Judge Albright was only assigned to 19 cases in January 2023. While the drop is obvious, the new rate is still substantially higher than true randomization, which would mean every 1 out of 11. A likely reason is that many of the newly filed cases have relevance to the previous Albright cases. As such, we can expect the numbers in WDTX and for Judge Albright to continue to drop this year.
Delaware
Delaware's Chief Judge Colm F. Connolly received extensive attention when he issued a set of standing orders in April 2022 calling for litigation funding transparency. The orders require extensive disclosure of entities that are related to the parties and the litigations. Many believed that non-practicing entities with opaque ownerships would avoid filing in Delaware to avoid having to reveal their affiliations and funding sources.
With the litigation financing orders, Delaware also saw a decline in popularity. In January 2022, a total of 55 patent cases were filed in Delaware, representing 20.4% of the 269 total patent cases. In January 2023, Delaware logged 46 patent cases, or 19% of the 242 nationwide. Thus, it appears Delaware has maintained its popularity despite the attention Judge Connolly's standing orders have received.This is likely because many U.S. corporations are incorporated in the state and it remains convenient to establish venue in Delaware.
Looking Forward
Overall, despite the orders potentially disincentivizing patent holders, Delaware and the Western District of Texas remained at the top of forums in January 2023. However, other forums have gained traction. The Eastern District of Texas, which ranked third in both January 2022 and January 2023, rose from 21 cases to 31 cases. Another notable player is New Jersey, which logged a mere 2 patent cases in January 2022 but 12 in January 2023.
We can expect that both Delaware and Texas will remain popular states for patent litigation. However, the remainder of 2023 will remain interesting to see if Western District of Texas filings continue to decrease and whether the Delaware standing orders will truly influence the majority of patent owners.
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