David Counts

Judge David Counts: Profile

Overview

David Counts is an active United States District Judge for the Western District of Texas, presiding over cases in the Midland-Odessa and Pecos Divisions. He was nominated by President Donald Trump and confirmed by the Senate on January 11, 2018, receiving his commission on January 17, 2018. Before his appointment as a district judge, he served as a U.S. Magistrate Judge in the same district from 2009 to 2018. His prior legal career includes extensive prosecutorial experience as an Assistant United States Attorney for the Western District of Texas and as an Assistant District Attorney in Travis County.

Patent Docket

Judge Counts' patent docket has grown dramatically since late 2022. Following a district order that randomized patent case assignments filed in the Waco Division to dilute the caseload of Judge Alan D. Albright, plaintiffs began filing directly in the Midland-Odessa Division. As the sole district judge in that division, Judge Counts is not subject to the random assignment order, giving plaintiffs certainty their case will be assigned to him. This has propelled him to become one of the nation's busiest patent judges, ranking second in the country for new patent case filings by the first quarter of 2025. The docket before him includes numerous cases filed by non-practicing entities against major technology companies, as seen in tracked cases such as Speednic LLC v. Nvidia Corp and Cedarwood Ventures Inc v. Apple Inc.

Notable Rulings and Trends

The primary driver of Judge Counts' popularity as a patent venue is his adoption of procedures favorable to plaintiffs who seek a rapid path to trial. In August 2022, just weeks after the Waco assignment order, Judge Counts issued a "Standing Order Governing Patent Proceedings" that largely mirrored the fast-paced, trial-focused scheduling rules established by Judge Albright. This move was widely interpreted by practitioners as signaling an intent to manage patent cases in a similar manner. Judge Counts also frequently refers pretrial matters in patent cases to Magistrate Judge Derek Gilliland, a former patent litigator hand-picked by Judge Albright to assist with the Western District's patent workload.

Local Rules and Procedures

Judge Counts' most distinctive local procedure for patent litigation is his Standing Order Governing Patent Proceedings. This order sets an aggressive schedule for discovery, claim construction (Markman) hearings, and trial, which is attractive to plaintiffs seeking to put early pressure on defendants. Litigants can expect a docket managed with the specific procedural framework of this order, which deviates from the district's standard rules. Because the Midland-Odessa division does not have a special case assignment rule for patent cases, filers can directly access Judge Counts' courtroom, a practice that has become a key strategic consideration in national patent litigation.