Texas’ reputation as the nation’s top venue for patent disputes hasn’t faded, according to a new report from Lex Machina that shows a remarkable 40.4 percent of all patent litigation in the country from 2023 through 2025 was adjudicated in the state.
The data shows three of the state’s four districts are among the busiest in the country. Predictably, the Eastern District of Texas took the top overall spot, followed by the Western District of Texas, while the Northern District of Texas ranked as the ninth busiest district in the country for patent cases.
“There are just so many relative shortcomings to venues outside of Texas, that it doesn’t surprise me at all,” Demetrios Anaipakos of Alavi Anaipakos said of the results. “I think it’s going to become an even more important venue as, frankly, tech companies flee from jurisdictions like California and are relocating to Texas in record numbers. As they move to Texas, the litigation is going to come to Texas, too.”
Those who pay attention to the patent docket will also not be shocked to see U.S. District Judge Rodney Gilstrap maintained his place as the busiest patent judge in the country. For the time frame examined in the data, Judge Gilstrap handled 19.9 percent of all patent cases in the country.
Michael C. Smith, a partner in the Marshall office of Scheef & Stone who also runs an Eastern District of Texas blog, noted that because Judge Gilstrap has been handling a high volume of patent cases since assuming the bench in 2011, he provides litigants both expertise and some predictability.
“I know with a great deal of certainty what I can do and what I can’t do and I don’t have to spend $20,000 on a motion to find out,” Smith said of operating within Judge Gilstrap’s local rules. “We have a lot of expertise with what Judge Gilstrap likes and doesn’t like… and he is tremendously skilled at getting these cases through, and so is his magistrate judge, Judge [Roy] Payne.”
Anaipakos echoed praise of how Judge Gilstrap runs his docket, calling his work ethic “stunning.”
“Some people might say he’s pro patentee. I think that’s nonsense,” he said. “He’s an even-keeled judge who is pro the prompt administration of justice. That’s what he’s interested in. It is jaw dropping for me the way he is able to keep this tsunami of cases moving efficiently.”
On a per-judge basis, Texas claims five of the top 10 most active judges for patent litigation, and all four of the top spots, with U.S. District Judge Alan Albright handling 4.4 percent of patent cases, U.S. District Judge Walter Counts III handling 4.3 percent and U.S. District Judge Robert Schroeder III handling 3.2 percent. U.S. District Judge Robert Pitman rounded out the top 10 with 1.9 percent.
But those numbers are bound to change in the next edition of the Lex Machina report. Judge Albright, a former patent lawyer who became a judge in 2018 and quickly turned his Waco courtroom into a hotspot for the complex cases, has announced he intends to leave the bench at the end of the month.
“My best guess is that filings will trail down, because even if some of the [new] judges show a brilliance in managing patent cases … those judges still have such a small percentage of that respective docket in their division that it’s an enormous risk to file there,” Smith said. “I think it’s likely that a lot of plaintiffs will be going somewhere else if they can.”
After patent filings surged in the single-judge division where Judge Albright sat, the chief judge issued a standing order requiring patent cases be equitably distributed among all judges in the district.
The number of patent cases Judge Albright was assigned took a dip after that, and dipped further after a subsequent order prevented follow-on cases from being assigned to Judge Albright. But Smith said when the jurist decided to move his chambers to Austin last year, he “disproportionately got a huge number of patent cases pending in Austin.”
“The order that required districtwide assignment of patent cases in Waco… didn’t apply to patent cases filed in Austin,” he said.
Two new judges have been confirmed to benches in the Western District of Texas, former Tarrant County District Judge Christopher Wolfe sits in Waco, and Andrew Davis, a former partner at Lehotsky Keller Cohn, sits in Austin. Neither judge has “significant expertise in patent litigation,” Smith said.
For Anaipakos and other intellectual property lawyers, the next 18 months will largely be a wait-and-see period for how patent litigation is handled in the Western District of Texas.
“The Western District of Texas is increasingly housing very large tech companies — Tesla, Apple and a lot of significant players who will be involved in patent litigation,” he said. “So one would expect the Western District would become a busy venue simply because the other venues remain unattractive.”