The Great Patent Rebalancing

Hello all,

Can you believe it’s summer already? The kids are out of school, Fridays quietly dissolve into the weekend, and people suddenly find themselves with a ton of time to catch up on some interesting reading — like this column. 😉

The annual pilgrimage of the IP market faithful just wrapped up in sunny San Diego, and if you couldn’t make it, my summary below will get you up to speed. I also dig into the phenomenal trajectory of the Unified Patent Court (UPC) in Europe, which has done in just three years what most courts never manage: become fast, inexpensive, predictable, and armed with real teeth — everything anyone caught in a patent dispute could wish for.

Then comes the pièce de résistance: a judicial obituary for the imminent departure of Judge Alan Albright from the Western District of Texas. You wouldn’t think the exit of a single judge, in a single district — out of 94 nationwide — could reshape how patent rights are enforced across the entire country. Read on, and you’ll see exactly how. I also venture a few suggestions for fixing this sorry state of affairs.

As usual, while I focus on the macro picture here, we track everything happening in this space. For a more frequent news fix, you can follow me on LinkedIn, where I post almost daily on noteworthy developments. Links to recent posts are available here.

 Happy reading!

 Louis

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IPBC Global San Diego: The Year the Patent Market Stopped Apologizing

For nineteen years IPBC Global has been the room where the patent monetization world takes its own temperature, and this year — back at the InterContinental in San Diego with 750-plus senior IP people — the reading finally ran warm. For the first time in a long while, the hallway chatter didn’t sound like a wake.

Start with the headline, because it set the tone. USPTO Director John Squires opened the conference by arguing that AI is forcing a reset of patent eligibility — and that, for once, the office intends to lean into it rather than hide behind § 101. After a decade of treating eligibility as the nearest emergency exit, hearing a sitting Director signal that inventions with real technical substance deserve protection is, frankly, the most encouraging sentence to come out of Alexandria in years. Signaling isn’t law — the Federal Circuit and Congress still hold the pen — but tone from the top matters, and the tone just changed.

AI was, predictably, in every session. The more useful insight wasn’t the hand-wringing over inventorship and disclosure; it was the quiet recognition that AI is collapsing the cost of the grunt work that made monetization expensive in the first place. Claim mapping, evidence-of-use, damages modeling — the spadework that used to eat six-figure budgets is getting cheap and fast. That cuts both ways, but it tilts toward patent owners, who can now build a credible enforcement case for a fraction of what it cost two years ago.

The market mood backed up the optimism. The debut IP Finance Forum put insurance, M&A and IP-backed lending on the main stage — a sign that institutional capital is finally treating patents as an asset class rather than a curiosity. And the deal flow was real, not theoretical: Huawei used the stage to set its Wi-Fi 7 rate at $0.50 per device on FRAND terms, and Nokia and Lenovo renewed their cross-license. Priced, public, transacting. Compared with last year’s defensive crouch, sentiment has firmed.

Now the contrarian note, because consensus is usually where the mispricing hides. The room arrived believing AI was primarily a threat to patents. It left treating AI as a tailwind for the business of patents — a monetization accelerant, not just a validity headache. And a USPTO openly leaning pro-eligibility cuts hard against the post-Alice gloom everyone has recited for ten years. If both hold, the assets the market has spent a decade discounting are exactly the ones to own. The smart money in San Diego seemed to know it.

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Three Years of the UPC: The Best Patent Court in the World, and Most Americans Missed the Memo

When the Unified Patent Court opened on June 1, 2023, the conventional wisdom said it would be a cautious, slow-burn experiment. Life-sciences companies would opt everything out, the system would take a decade to find its footing, and nobody should bet the portfolio on an untested court whose judges had never sat together. Three years later, that wisdom looks about as prescient as the people who told you streaming was a fad. The UPC didn’t take a decade. It took roughly eighteen months to become the single most consequential venue in global patent litigation — and for any patent owner who had the foresight to validate European counterparts to their U.S. patents, it has been the best news in a generation.

Start with speed, because that’s where it earns its reputation. The court hands down preliminary-injunction decisions in an average of 112 days — under four months — and full decisions on the merits in roughly 14 to 16 months. Compare that to a U.S. infringement case that crawls toward trial over five to seven years and $20 million in fees, if you can even find a judge willing to hear it. A complete UPC merits decision runs closer to twelve months and a million dollars. (Read those numbers again, then reread my last piece on the sorry state of American venue.)

Now the part that should make every patent owner sit up. The UPC grants injunctions. Roughly 60% of preliminary-injunction applications are granted, and on the merits the Court of Appeal made it explicit in Meril v. Edwards (November 2025): once a patent is found valid and infringed, an injunction issues as a matter of principle. There is no eBay four-factor obstacle course, no “irreparable harm” séance, no judicial hand-wringing over whether a patentee who doesn’t practice the invention “deserves” to stop the infringer. Across more than fifty merits judgments, commentators note there is not a single case where injunctive relief was denied or quietly watered down. In the country that invented the patent injunction and then spent two decades dismantling it, that is a remarkable sentence to be able to write.

And the reach is staggering. A single UPC action covers 18 member states, and thanks to the CJEU’s BSH v. Electrolux ruling, the court’s long arm now stretches across all 40 EPC states — a market materially larger than the United States. In Fujifilm v. Kodak, a Mannheim division issued an injunction reaching into the UK. The court has also confirmed it can award damages running back before it even existed — in one case all the way to 2016. One filing, one injunction, one continent (and then some).

Let me not oversell it. Validity is a genuine fight, not a rubber stamp: in infringement actions, 47% of asserted patents were revoked or survived only in amended form, and in standalone revocation actions that figure climbs to 76%. The UPC is fast and it is decisive, which cuts both ways — a weak patent dies quickly and publicly. This is a forum that rewards quality over volume. Choose your assets accordingly.

But here’s the proof in the pudding: who is actually using it? U.S. entities are the most frequent preliminary-injunction applicants (44%) — and the most frequent targets of revocation actions (57%). Translation: sophisticated American patent owners figured this out early and are enforcing aggressively, while the American companies that ignored Europe are now playing defense on unfamiliar ground. Unitary-patent uptake tells the same story — from 17.5% of granted European patents in 2023 to nearly 28% in 2025, more than 78,000 requests filed, and over a third among EU-based proprietors.

So here is the uncomfortable lesson for our market. While the United States turned patent enforcement into a question of real estate — which zip code, which judge, which transfer motion — Europe quietly built the court the U.S. used to be. The patent owners winning today aren’t the ones with the cleverest venue strategy. They’re the ones who, years ago, spent the modest extra money to file European counterparts to their U.S. patents. That wasn’t paperwork. That was vision. And it is paying off.

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The Albright Era Ends — And the Patent Market Holds its Breath

When Judge Alan Albright was appointed to the Western District of Texas back in 2018, I wrote that a single individual could move the needle for patent owners in this country. I am not in the habit of patting myself on the back, but on that one I called it. Now, eight years later, Albright has announced he will step down from the bench at the end of August to return to private practice as a trial lawyer — and the same pundits who spent years trying to clip his wings are suddenly nostalgic. Funny how that works.

So before we all move on, let me offer the obligatory eulogy: the good, the bad, and the ugly of the most consequential patent judge of the last decade.

The Good

Albright did something almost no other federal judge in America bothers to do: he liked patent cases, and he put in the work. A former Bracewell patent litigator who knew his way around a Markman hearing, he built local rules designed to move cases on a predictable schedule, capped the discovery games, and actually held trials. Inventors and operating companies who had spent years being told to wait in line finally had a courtroom where they could get to a jury before their patents expired.

The numbers tell the story. Waco went from 90 patent cases in 2018 to 3,863 in 2020. At his peak in 2020–21, roughly one in five patent cases in the entire United States landed on his docket. That is not an accident of geography — Waco is not exactly Silicon Valley. It happened because plaintiffs and defendants alike trusted that the process would be fast, transparent, and run by someone who understood the subject matter. Even defense-side lawyers conceded the point. As David Henry of Munck Wilson Mandala put it, Albright told the parties this was their case, and he would work within the rules to do what made sense for it — resolving discovery fights by a phone call rather than the usual motion-to-compel circus.

Crucially, he never reached for the cheap off-ramp. Most judges, handed a patent case, look for the nearest exit — and Section 101 is the emergency slide of choice, a tidy way to toss a case at the pleadings without ever learning what the invention does. Albright refused to play that game. He even called the eligibility mess what it is: a “confusing abyss.” When a judge is willing to wade into the abyss rather than use it as a trapdoor, patent owners notice.

The Bad

Let me not canonize the man. Albright was not, by reputation, the most technically precise judge on the bench, and the Federal Circuit reminded everyone of that with some regularity. His rulings — particularly his refusals to transfer cases out of Waco — were reversed and vacated at a remarkable clip. In 2021 alone the Federal Circuit granted mandamus against him on convenience-transfer rulings something like 18 times, nine of those in the fourth quarter. That is not a rough patch; that is a pattern.

Reasonable people can argue he sometimes held cases too tightly to keep them in his court. Fair enough. But it is worth remembering that mandamus is supposed to be an “extraordinary” remedy, granted in rare cases. The Federal Circuit started handing it out like parking tickets, to the point where even sympathetic commentators described the court’s fixation on a single district judge as “increasingly bizarre” and closer to de novo second-guessing than appellate review.

The Ugly

Which brings us to the part nobody likes to say out loud. Albright did not just irritate the Federal Circuit — he became a political target. Senator Thom Tillis fired off letters questioning whether the judge was “soliciting” patent cases. Chief Justice Roberts devoted a chunk of his 2021 year-end report to case-assignment practices, pointedly describing the problem without ever naming the man everyone knew he meant. And in July 2022, WDTX Chief Judge Orlando Garcia — under no small amount of pressure — issued the order that broke the spell, redistributing new Waco patent filings randomly across twelve judges.

Make no mistake about what that was. A district court that had become too attractive to patent owners was administratively dismantled, with a generous assist from behind-the-scenes lobbying by the usual Big Tech suspects who would much prefer that infringement cases die quietly and cheaply. The lesson efficient infringers took away was not “build a better mousetrap.” It was “if a forum starts working for the other side, lobby until it stops.”

What the Departure Means — And Why It’s Bad News

Dennis Crouch over at Patently-O titled his piece “Fun While It Lasted,” and that about captures the mood. He’s right that the announcement is less seismic than it would have been in 2021, since Garcia’s order already defanged the Waco rocket docket years ago. But the symbolism is enormous, and the practical effect is real.

Winston & Strawn’s Aimee Fagan said the quiet part plainly: Albright’s departure “will impact venue selection, as he is the reason many litigants choose to file in the Western District of Texas.” The litigators I’ve spoken with go further — most are simply in limbo, and a good number have decided not to file new cases in WDTX at all until they see how the chambers shuffle shakes out. That is a freeze, not a rerouting.

And here is the rub for our marketplace. That leaves the Eastern District of Texas — Judge Gilstrap’s shop — as effectively the only venue patent owners trust for a relatively fast, predictable resolution, win or lose. One judge. In one district. In a country with 94 federal judicial districts. Between them, Gilstrap and Albright drew nearly 30% of all U.S. patent cases filed from 2021 to 2023. And Gilstrap’s docket, once the original rocket, is itself slowing down.

I see the consequence every week. Buyers and law firms love the portfolios we bring them. Then they pass — not because the patents are weak, but because they cannot realistically enforce them anywhere they trust, and they are not willing to roll the dice on an unfamiliar judge in some other district who may take four or five years just to reach a trial date, if they take the case seriously at all. When enforceability collapses to a single zip code, asset values follow.

The Uncomfortable Bigger Picture

It is genuinely hard to look an international client in the eye and claim the United States has the world’s premier IP enforcement system when the single most important variable in a case is where you are allowed to file it. We have turned a question of substantive justice — is this patent valid and infringed? — into a question of real estate. The merits should travel with the patent, not with the courthouse.

And here’s the part that should embarrass us. This is a uniquely American disease. Have you ever heard of a patentee twisting itself into knots to avoid Frankfurt so it can file in Stuttgart? Of anyone scheming to land in Mumbai rather than Delhi, or Shanghai instead of Beijing? Of course not. Germany routes patent cases to a handful of specialized courts where the judges are technically trained and the timelines are measured in months — the worst-case complaint is a mild preference between Mannheim and Düsseldorf, not a four-year gulf in competence. China built dedicated IP courts in Beijing, Shanghai, and Guangzhou and an IP tribunal at the Supreme People’s Court to keep things consistent. India funnels its serious patent disputes to specialist benches at the Delhi High Court. Europe just stood up the Unified Patent Court precisely so that one filing covers the continent. Everywhere else, the system was designed so that where you sue is a footnote. Only in America is it the whole plot.

So let me throw out a few ideas, in the spirit of thinking past the status quo:

• A national patent trial pool. File anywhere; a case gets randomly assigned to one of a few dozen district judges who have opted in, completed real patent training, and committed to fixed schedules. Competence stops being a lottery, and forum-shopping stops being a strategy because every forum is equally good.
• Make geography irrelevant by going remote. If we learned anything from the pandemic, it’s that Markman hearings and even trials can run virtually. Decouple “venue” from “physical location” and the whole transfer-motion industry — the thing that consumed years of Albright’s docket — largely evaporates.
• Codify the Albright playbook as a national standard. His good local rules (firm scheduling, disciplined discovery, early certainty) weren’t magic. Adopt them as default patent rules everywhere, and “rocket docket” becomes a baseline expectation rather than a regional novelty.
• Expand the ITC model. The ITC already offers fast, specialist adjudication on a fixed timeline. Give it broader remedial reach, or build a district-court analog, and you create a real second lane that doesn’t depend on one judge’s enthusiasm.
• Mandatory patent certification for any judge who hears patent cases. If we can require it of patent attorneys, we can ask it of the bench. No more learning § 112 on the fly during your trial.

Albright proved that one judge willing to do the work could change the entire market. The real indictment of our system is that it took one judge — and that when he leaves, patent owners have almost nowhere left to go. The fix isn’t to find the next Albright and hope the lobbyists don’t notice. It’s to build a system where we don’t need one.