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On March 12, 2024, the Judicial Conference of the United States announced that in certain types of cases, it will change how cases are assigned to judges, which will limit the ability of litigants to choose which judge is assigned to their case. While the new policy appears to be limited to civil cases that seek to bar or mandate state or federal actions, the announcement makes specific reference to the issue of judge-shopping in patent cases.&nbsp;

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In most federal district courts, cases are randomly assigned to one of the many judges who sit in a particular court. As the Judicial Conference explained, “[t]he random case-assignment policy deters judge-shopping and the assignment of cases based on the perceived merits or abilities of a particular judge. It promotes the impartiality of proceedings and bolsters public confidence in the federal Judiciary.”<a href="#_ftn1" id="_ftnref1">[1]</a>

However, some federal courts have multiple divisions and have a policy of randomly assigning cases filed in a division to a judge who sits in that division. This random case-assignment policy breaks down when there is only one judge assigned to a particular division: “[i]n divisions where only a single judge sits, these rules have made it possible for a litigant to pre-select that judge by filing in that division.”<a href="#_ftn2" id="_ftnref2">[2]</a>

These single-judge divisions are prevalent in Texas, which in turn, have attracted patent cases. The Judicial Conference references that in 2021, Senators Tillis and Leahy raised concerns “about a concentration of patent cases filed in single-judge divisions;” that Chief Justice Roberts called for “a study of judicial assignment practices in patent cases;” and that the Judicial Conference conducted a “patent-case study.”<a id="_ftnref3" href="#_ftn3">[3]</a>

Yet, the Judicial Conference’s new policy on its face applies only “to cases involving state or federal laws, rules, regulations, policies, or executive branch orders,” where the litigants seek to bar or mandate state or federal actions, whether by declaratory judgment or any form of injunctive relief.<a href="#_ftn4" id="_ftnref4">[4]</a> And in such cases, judges will now be “assigned through a district-wide random selection process.”<a href="#_ftn5" id="_ftnref5">[5]</a>&nbsp;

Will The New Policy Apply to Patent Cases?

The Judicial Conference recognized in its announcement that there has been a high concentration of patent cases filed in single-judge divisions.<a href="#_ftn6" id="_ftnref6">[6]</a> For instance, in 2021, there were 937 patent cases filed in the Waco Division of the Western District of Texas, a single-judge division with one district judge — Judge Alan D. Albright. He had the most patent cases in the country in 2021, having been assigned 23.4% of all patent cases filed that year.<a href="#_ftn7" id="_ftnref7">[7]</a>

On July 25, 2022, the Western District of Texas implemented its own change that would randomly assign patent cases filed in Waco to any of the judges across the Western District of Texas. The full effect of this change — on where patent holders have chosen to file their cases — is apparent in the 2023 data, which showed that only 206 newly-filed patent cases were assigned to Judge Albright. This represented only 6.6% of all patent cases filed in 2023.<a href="#_ftn8" id="_ftnref8">[8]</a>

In 2023, the top patent judge was Judge Rodney Gilstrap, who sits in Marshall, Texas, which is a single-judge division in the Eastern District of Texas. There were 451 patent cases filed in Marshall and assigned to Judge Gilstrap, which represents 14.4% of all patent cases filed in 2023.<a href="#_ftn9" id="_ftnref9">[9]</a>

While the issue of the concentration of patent cases in single-judge divisions may have triggered the development of this new policy of assigning cases through a district-wide random selection process, the new policy does not appear yet to apply to patent cases.&nbsp; We do not know the outcome of the patent-case study referenced in the Judicial Conference’s announcement nor whether the decision by the Western District of Texas to change its case assignment policy for patent cases influenced the Judicial Conference’s decision.

We will have to wait and see the specifics of the new policy when it issues, and whether there is any discussion regarding the potential application of this policy in the future to patent cases.

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<a href="#_ftnref1" id="_ftn1">[1]</a> See “Conference Acts to Promote Random Case Assignment” (Mar. 12, 2024), available at <a href="https://www.uscourts.gov/news/2024/03/12/conference-acts-promote-random-case-assignment">https://www.uscourts.gov/news/2024/03/12/conference-acts-promote-random-case-assignment</a>.

<a href="#_ftnref2" id="_ftn2">[2]</a> Id.

<a href="#_ftnref3" id="_ftn3">[3]</a> Id.

<a href="#_ftnref4" id="_ftn4">[4]</a> Id.

<a href="#_ftnref5" id="_ftn5">[5]</a> Id.

<a href="#_ftnref6" id="_ftn6">[6]</a> Id.

<a href="#_ftnref7" id="_ftn7">[7]</a> Docket Navigator.

<a href="#_ftnref8" id="_ftn8">[8]</a> Id.

<a href="#_ftnref9" id="_ftn9">[9]</a> Id.

The End of Judge-Shopping in Patent Cases?