On November 18, 2022, Judge Alia Moses became Chief Judge of the Western District of Texas. Prior to this, on November 15, 2022, outgoing Chief Judge Garcia entered an Amended Order Assigning the Business of the Court that appeared to assign "All cases and proceedings in the Waco Division" to Judge Albright, thus superseding the previous July 25, 2022 Order (see previous post HERE) randomly assigning patent cases filed in Waco to one of the 12 District Judges across the Divisions.

However that Order has now been replaced. On December 16, 2022, Chief Judge Moses entered a new Amended Order Assigning the Business of the Court, ordering that "Patent cases will be assigned as ordered on July 25, 2022 in the Court’s Order Assigning the Business of the Court as it Relates to Patent Cases, with the exception that no further cases will be assigned to Senior Judge Frank Montalvo, and until further order of the Court."

The Western District of Texas now has a new policy pertaining to all newly filed patent cases in the Waco Division.  The Order says that all civil cases involving patents, filed in the Waco Division on or after July 25, 2022, shall be randomly assigned to one of the 12 District Judges across the Austin, Del Rio, El Paso, Midland-Odessa/Pecos, San Antonio, and Waco Divisions.

At this point, there are a lot of logistical unknowns and the long term effects of this Order are unclear, especially since there is currently no uniformity of patent procedures within the District.  

One option is for WDTX to adopt Judge Albright’s OGP, Scheduling Order, and Standing Orders relating to patent cases.  Another option is to promulgate District-wide patent local rules similar to EDTX or ND Cal.  This would provide some procedural consistency within the entire District, which may alleviate some of the perceived uncertain effects of this Order as well as alleviate any perceived “forum-shopping” within the District.

Another option is for the other divisions to utilize special masters and/or technical advisors to handle Markman hearings and other highly technical aspects of patent litigation cases. A District-wide pool of approved special masters and/or technical advisors could also add to consistent treatment of patent cases throughout the District.

Additionally, it will be interesting to see the effect that this Order has on inter-district transfers.   Some divisions have a very heavy criminal docket, which could mean that patent cases in that division would not go to trial as quickly. We will pay special attention to upcoming cases to see if factors like that are used to justify inter-district transfers since administrative difficulties and judicial efficiency are included in the 1404(a) factors.

There is a meeting of Judge Albright’s working group in late August and we anticipate that these issues will be a topic of discussion. 

What's Next?.... We will be closely monitoring these developments over the next few months and will keep you updated.