O'Melveny Insights 2023

42 Patent Litigation in Texas Patent case counts decreased only slightly nationwide in 2022. Plaintiffs filed 5,992 cases in 2022, down from 6,087 cases in 2021. Perhaps as a measure of the impact of the WDTX reassignment order, of the highest-volume patent districts, only the EDTX and Central District of California saw an increase in filings from July 25 through December 31 compared to the prior year. Here is how the numbers break down: Patent Case Distribution July 25 - December 31 2021 2022 Nationwide 2,641 2,561 W.D. Tex. 434 334 D. Del. 401 263 E.D. Tex. 190 210 N.D. Cal. 74 65 C.D. Cal. 109 122 But the dust hasn’t settled in WDTX. In November 2022, Judge Alia Moses in Del Rio succeeded Judge Garcia as the district’s Chief Judge. In this role, Judge Moses will have influence over case assignment procedures across the district, and in a December 16 standing order, Judge Moses kept in place Judge Garcia’s July 25 order. It remains to be seen, however, whether this policy will be permanent. There may be retirements in the district in 2023, which also could affect case assignments. For now, litigants should assume that the Eastern and Western districts will remain two of the country’s busiest. In Waco, the “related cases” phenomenon will take some time to tail off, and it seems likely there will be at least one other shoe to drop with respect to the adjusted case assignment protocol. And some WDTX courts outside of Waco seem to be positioning themselves to handle patent cases following Judge Albright’s procedures—using the same magistrates, adopting similar practices on technical advisors, and even adopting Judge Albright’s special rules, as already happened in Midland. Meanwhile, EDTX continues to see robust case filings and seems positioned to capture a sizeable share of cases that plaintiffs may divert away from WDTX. In the year ahead, EDTX and WDTX will continue to handle out-sized shares of patent litigation and continue to exert important influence over the direction of patent law.