Patent litigators preparing to ride out of Texas?

In less than eight years, U.S. District Judge Alan D. Albright personally transformed the Western District of Texas from a forgotten venue for patent litigation to the place for plaintiffs to go.

At its peak, roughly a quarter of all patent cases were filed in Albright's courthouse.

His upcoming departure at the end of August for private practice has patent attorneys debating whether the district will lose many of its remaining infringement cases - and where they might go.

Albright's influence had already been on the wane, as an order by then-Chief Judge Orlando L. Garcia in July 2022 after a lobbying campaign, supported by Silicon Valley defendant companies, made it impossible for plaintiffs to guarantee that their cases would be heard by him.

But while the Eastern District of Texas has resumed its place as the leading venue for patent infringement plaintiffs to file, the Western District - bolstered by "follow-on" cases that were linked to complaints already filed before Albright - was still in third place last year, with about 12% of new filings.

The Western District also was the second most popular venue for patent lawsuits filed by non-practicing entities in 2025, according to a report by RPX Corp.

Albright's backlog dwarfs those of other judges in the Western District, including two new judges appointed by President Donald Trump and confirmed by the U.S. Senate last month.

Several attorneys said they expect the number of patent infringement cases to be tried in the Western District to fall, with cases being handled very differently depending on the judge. Some are not fans of patent cases and will grant stays or motions to transfer.

Likely destinations include two longtime leading venues for patent infringement complaints: the Eastern District of Texas and District of Delaware, as well as courts in California, though each presents tradeoffs for plaintiffs and defendants.

A patent litigation exodus - but where?

Michael C. Smith, a partner with the Marshall, Texas office of Scheef & Stone LLP, has a bearish view of the district's future as a patent litigation hub.

"My belief is that it is going to go back to something of a backwater," he said. "It's going to be a difficult choice for a lot of plaintiffs."

The Eastern District is an attractive option, although Apple Inc. took the extraordinary step of closing all its retail stores in the less populated venue.

Alphabet Inc.-owned Google also has aggressively moved to transfer cases to the Northern District of California and has often been successful.

"There is a limited ceiling on what can be filed in the Eastern District," Smith said.

Paul R. Gugliuzza, a professor at the University of Texas at Austin School of Law, said it is more expensive for defendants to litigate in Texas than in San Francisco.

"It gives the plaintiffs more leverage in negotiating a settlement" because Albright and U.S. District Judge J. Rodney Gilstrap of the Eastern District of Texas move cases quickly and do not grant motions for summary judgment, he said.

While defendant technology companies would prefer rule changes allowing transfers to venues that they believe are more favorable, Gugliuzza does not expect any changes to happen during the patent owner-friendly Trump administration.

When technology companies are deciding where to spend their limited political capital, "it's not going to be on patent law. It's going to be on something bigger than that," he said.

Might the Western District survive?

Not all lawyers agreed with the pessimistic outlook. Steven Tepera, a partner with Pillsbury Winthrop Shaw Pittman LLP in Austin and Houston, said Albright "ramped up patent litigation in the Western District in a way that won't easily be stopped."

He said Texas' growing popularity with technology companies, especially in the Austin area, has changed the Western District that will allow it to survive Albright's departure. Dell Technologies Inc. became the latest Texas-based company to reincorporate from Delaware last week, and its Round Rock headquarters is in the Western District.

"Given the Western District's established familiarity with patent cases, and Texas's continued status as a magnet for technology activity, we expect [it] to remain an attractive patent venue," Tepera wrote in an email.

The View from California

Brett J. Williamson, a partner with O'Melveny & Myers LLP, said the firm is trying to determine the impact of Albright's exit.

"The big picture expectation is that Delaware is going to get more cases, possibly also courts in California, even though the venues are not very attractive for [non-practicing entities]," he wrote in an email.

Sarah J. Guske, a partner with Morgan, Lewis & Bockius LLP who generally represents technology clients, is adopting a wait-and-see approach about the Western District of Texas' future.

"It shouldn't be overlooked that magistrate judges and judges [Albright] have worked with for the past several years aren't going anywhere," she said.

Lawyers say they expect a more fragmented approach in the Western District because no single judge is likely to emerge as an Albright replacement under the rules adopted in 2022.

The stakes for district court venue are getting higher because the U.S. Patent and Trademark Office is making it much more difficult to get patents invalidated by the Patent Trial and Appeal Board in inter partes review.

Last month, Google filed a writ of certiorari with the Supreme Court challenging a decision by the U.S. Court of Appeals for the Federal Circuit allowing patent office director John S. Squires to deny institution of inter partes review for patents that are more than six years old.

CORRECTION: The May 4 "Capital & Counsel" newsletter about Google's Supreme Court petition had a typo on the middle initial of the name of Jonathan S. Masur, a professor at the University of Chicago Law School. The Daily Journal regrets the error.

Pipeline showdown

California is seeking to block a federal order to restart an oil pipeline off the Santa Barbara County coast, setting up a clash over emergency powers in its midst of a war and a price spike.

Attorney General Rob Bonta is seeking a preliminary injunction against the U.S. Department of Energy Secretary Chris Wright's ordering a restart to Sable Offshore Corp. oil pipelines under the Defense Production Act.

The Sable pipeline has been closed since a 2015 oil spill and usually falls under the authority of state officials. But Wright, citing the rarely invoked DPA, argued that California policies have left the U.S. military dependent on foreign oil. Attorney General Rob Bonta argues that the decision violates the state's sovereign property rights.