As Judge Albright Prepares to Leave the Bench, A Look Back on His Patent-Friendly Tenure

Judge Alan Albright at IPWatchdog LIVE 2021

Last week, Bloomberg Law broke the news that U.S. District Judge Alan D. Albright of the Western District of Texas would leave the Western Texas bench by the end of this August. Nominated to the federal judiciary during the first Trump Administration, Judge Albright spent his relatively short time on the bench cutting a courageous pathway through patent law, which created some controversy in Congress, but notably has earned him a reputation of thoughtfulness and fairness in the application of patent law among plaintiff- and defendant-side lawyers arguing in his courtroom.

Judge Albright Often Faced Extraordinary Writs of Mandamus Over Venue Rulings

Nominated by President Donald Trump in 2018 to fill the judicial vacancy in Western Texas created by the retirement of U.S. District Judge Walter Scott Smith Jr., Judge Albright had previously served as a U.S. magistrate judge in Western Texas from 1992 to 1999 before moving into private practice as a patent attorney with Bracewell LLP. Within two years of his confirmation, Judge Albright’s courtroom had gained a reputation as a rocket docket for patent cases thanks to the development of local rules focused on patent cases and a lawyer-friendly approach built upon Judge Albright’s own deep experience with patent law.

Though much ink has been spilled questioning the rapid rise of patent litigation in Western Texas, which increased from 90 patent cases in 2018 up to 3,863 patent cases in 2020, short shrift has been paid to the popularity of Judge Albright’s case scheduling and limits to Marksmen claim construction, among other patent-specific procedural rules. Judge Albright has also authored opinions noting the difficulties of applying certain legal standards in patent law, such as the “confusing abyss of patent eligibility law” and how case law developed by the U.S. Court of Appeals for the Federal Circuit creates issues for all parties, including accused infringers who “face an uphill scramble” trying to prove subject matter eligibility under 35 U.S.C. § 101 on a motion to dismiss.

Unfortunately, Judge Albright’s tenure on the federal bench has been marked by consistent struggles with appellate rulings at the Federal Circuit, especially with regards to his rulings on motions to transfer venue. Often, appellate rulings reversing Judge Albright and ordering the transfer of patent cases out of the Western District of Texas have granted the extraordinary remedy of mandamus relief, a form of judicial edict to lower courts that is typically only granted in rare cases. Criticisms of Federal Circuit rulings ordering the transfer of patent cases on mandamus include a lack of evidence that witnesses would testify in the transferee court, and a lack of discretion paid to district court rulings amounting to de novo review by the Federal Circuit.

The Federal Circuit was hardly the only D.C.-area institution rankled by the popularity of Judge Albright’s courtroom. In November 2021, Senator Thom Tillis (R-NC), who himself has rightfully earned a reputation as an advocate for improving the nation’s IP system, wrote a letter expressing concerns over Judge Albright’s perceived solicitation of patent cases to the U.S. Patent and Trademark Office as well as U.S. Supreme Court Chief Justice John Roberts. At this time, Judge Albright was the sole judge in the Waco division of Western Texas, resulting in his overseeing every patent case filed in that office of the court.

Judge Albright’s Graceful Reconciliation of Shifting Mandates Part of Judicial Legacy

On the last day of 2021, Chief Justice Roberts issued the annual Year End Report on the Federal Judiciary, which disclosed that the Chief Justice had begun an official process within the Judicial Conference of the United States (JCUS) to review case management procedures in U.S. district court, referencing perceived issues with Judge Albright’s court without explicitly naming the judge. These issues culminated in a July 2022 order issued by Western Texas Chief Judge Orlando Garcia mandating the equitable distribution of new patent cases across all 12 federal judges within the district.

Judge Albright showed an aptitude for reconciling these shifting standards in ways that refused to sacrifice the level playing field constructed in his courtroom. In June 2021, Judge Albright entered a pair of standing orders in response to Federal Circuit mandates on venue transfers, establishing presumptive limits to venue and jurisdiction discovery while also requiring status reports to ensure the disposition of transfer motions prior to Markman claim construction hearings.

In a text message, Judge Albright confirmed to Bloomberg Law that he would be returning to practice as a trial lawyer, indicating that his time behind the bench will be very instructive to the next chapter of his career. His departure creates a vacancy in the Austin division of Western Texas following the confirmation earlier this April of Chris Wolfe to fill the Waco division vacancy created by Judge Albright’s transfer to the Austin division in early 2025.

According to David Henry, Managing Partner of the Waco office of Munck Wilson Mandala and a colleague who has worked closely with Judge Albright for many years, Judge Albright leaves a legacy of serving as a federal judge who worked effectively with all parties to resolve patent infringement cases rather than serve as a feared second adversary for every party and counsel:

“Judge Albright would tell parties in each case that this was their case, and that he would work with them within the bounds of the federal rules to do what makes sense for their case. He, for example, resolved discovery disputes by way of a discussion by telephone, rather than the traditional and expensive and time-consuming motions to compel and sometimes sanctions route of many courts.  As one of the most trial experienced judges on the federal bench, Judge Albright never lost the perspective of being in trial counsel’s shoes, and did his best to make the judicial process work towards a legally correct and just result.”