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.
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