For some time, attorneys filing patent cases have opted to file their actions in a relatively limited subset of U.S. district courts. These filing decisions reflect a number of practical and tactical issues, including jurisdiction and venue requirements, convenience, anticipated success rate, and time to trial. For a discussion of some of these factors, see Mark Lemley’s excellent article, “Where to File Your Patent Case.”
It now appears, however, that the trend is becoming more acute. A new analysis of filing trends for 2013 shows that case filings are being concentrated in just two courts with alarming frequency. A report by James Pistorino at Perkins Coie compiling case filing statistics through September 10 shows that 45 percent of cases filed this year have been launched in the District of Delaware and the Eastern District of Texas. This appears to be a marked increase in the concentration of cases in those two courts, since from 2007 through 2010 those courts accounted for no more than 20 percent of all cases filed. The full Perkins Coie report is available here.
This trend will undoubtedly trigger concerns that because they will be deciding almost half of all U.S. patent cases at the trial court level, the ED Texas and Delaware may be able to exert a disproportional influence on the development of patent law in coming years. At least one commentator has expressed concern that this trend will benefit patentees, since it is also “subtly tilting the patent system against defendants, by giving some of the nation's most plaintiff-friendly judges a disproportionate role in deciding patent disputes.” See WaPo Comment HERE.