Patexia Insight 123: Western District of Texas Grew 13x in Five Years

Tomorrow we are releasing our second annual Patent Litigation Intelligence Report, which covers the 4-year period from July 1, 2017, through June 30, 2021. We have evaluated a total of 14,506 district court patent cases and reviewed all parties and their representatives. One major change in the landscape that we noticed was the imbalance in case filings, especially significant growth in a handful of district courts including the Western District of Texas.

After collecting the raw data for 14,506 patent cases from PACER and crunching tens of thousands of documents, we learned that in the 4-year covered by this study, a total of 14,251 plaintiffs and defendants were named in one or more patent cases. These entities were represented by 3,050 law firms and 14,685 attorneys. 1,204 district court judges presided over these cases all across the country. 12,293 unique patents were at the center of these lawsuits. Some of these patents were litigated over 100 times during this period.

During the last decade the numbers of district court litigation grew year over year until 2015 when a decline began, which was probably influenced by the introduction of IPR as well as some changes in patent law through the Supreme Court that made software patents weak. But this downward trend made a U-turn when the pandemic began in 2020.

As observed in the above chart, a growth of 15.5 percent was recorded in 2020  and the growth continued throughout 2021, to reach 3,981 cases, a new peak for the period of study. As a consequence, the number of patents litigated followed the same upward trend to reach a new high of 4,123 in 2021. This indicates that plaintiffs are asserting more patents which generally means more work for attorneys. The reasons behind the latest increase are still in the realm of speculation. However, as covered in our 2022 Patent Litigation Intelligence Report, there are some entities that have single-handedly influenced this growth by filing numerous cases based on the same patents.

Diving deeper into our data, we found a handful of courts were receiving far more cases than others, resulting in an imbalance between different court activities. When combined per state, we concluded that three states of Delaware, Texas and California are highly active.

The following pie chart shows that these three states have the large share of the total. Of the 14,506 patent cases filed in the 4-year period of our study (July 1, 2017, through June 30, 2021), 27.8% (4,037) were in Texas District Courts, 20.3% (2,947) were in California District Courts, and 19.5% (2,822) were in Delaware District Courts. This means that 67.6% of all patent cases or more than two-third of all are filed in these three states alone. You can see the big difference with the next highest states. Illinois, New York, and Florida account for 4.5%, 4.5%, and 3.6% of patent cases, respectively. The rest, each represent less than 2% of the total.

Investigating further, we noticed that some district courts were single-handedly causing this imbalance between the states. The top three courts had more than2,000 cases each during the last five years. Delaware District Court which is the only district court for Delaware ranks first with 3,479 cases, followed by Texas Eastern District Court and Texas Western District Court with 2,560 and 2,253 cases, respectively. However the sum for 4 years does not reveal the data we need to study the trends and whether any shift is happening.

To find out more, we further focused on the top three courts during the last five years. The above bar chart tells a different story. The Delaware District Court fluctuated between 592 and 811 cases per year. At the same time, the volume at Texas Eastern District Court saw a drop of almost 50% from 2017 to 2021. During the same period, the Texas Western District Court saw a huge growth. The volume at this court has grown more than 13 times in a very short period from 73 cases in 2017 to 981 in 2021.

To gain more insights, we analyzed the activity of all 1,204 district court judges who were active during this time period. Judge Alan D. Albright assumed office on September 10, 2018 and since then, the number of cases filed in his district have been skyrocketing. His district has become very popular among the plaintiffs and the media has extensively covered it. This has caused a shift in IP litigation to the Western District in Texas. The fast schedule and deadlines makes this judge very attractive, especially to the plaintiffs that seek a quick conclusion.

This year for the first time, we identified and reviewed all lateral moves among the top 1,000 most active patent litigators that took place since our first report in 2021. We counted 69 moves across the country among the top 1,000 litigaors. But the moves in Austin and Texas caught our attention. Many big law firms that were also ranked high in our annual report, announced new office openings in Austin in 2021, making this city the new hotspot for legal professionals. To name a few, Perkins Coie opened a new office in late2020 while Quinn Emanuel established their presence in Austin in January 2021. Kirkland & Ellis, O’Melveny & Myers and Latham & Watkins were three other big firms that expanded there in April, June and September of 2021, respectively.

Aside from becoming the new home for patent litigators, Austin has also attracted billions of dollars in investments, especially from the big tech companies. Tesla, Google, Amazon, SpaceX, Apple and Facebook have already announced their plans about intensifying their presence in Austin which is surely making this city a new rival for Silicon Valley.

The Patent Litigation Intelligence Report will be available for download from tomorrow. This comprehensive report gives you access to statistical data related to litigation as well as performance and activity analysis and rankings of attorneys, law firms and companies. All of these aim to help you make more informed and data-driven decisions. The report also highlights the most active local counsels.

In the next few weeks, we plan to cover more from this report including the coverage of some of the best performing and most active companies, law firms and attorneys when it comes to the district court patent litigation. Stay tuned!