Originally published by Barry Barnett.
A flood of cases
In the second quarter of 2015, a spate of patent cases flooded the 94 district courts around the country, but a single district drew more than half of them — a record 839 out of an all-time-high 1,656 total.
The receiver of the intellectual property bounty? The Eastern District of Texas.
The fact that a good percentage of the cases went to that district — which rambles from north and west of Dallas to north and east of Houston — will not surprise any lawyer who has handled more than a few patent infringement cases during the last decade.
Seeking the causes
But what accounts for the big spike in cases nationwide? And why did fully 50 percent go to Marshall, Tyler, Plano, Texarkana, Sherman, and Beaumont, Texas?
The overall jump must stem from a cause that applies coast to coast. The threat that Congress will make patent lawsuits harder to bring, to afford, and to win fits the bill. The danger has waxed and waned, but — even after the Leahy-Smith America Invents Act of 2011 put potholes in the road to a patent-infringement verdict — it has mostly waxed. Although the legislative effort stalled in July 2015 — after the second quarter — savvy patent holders and their counsel thus had plenty of reason to file suit before even tougher rules could become law.
The concentration of cases in East Texas reflects a number of factors. The most important ones: the judges’ familiarity with the arcane body of patent law, their acquaintance with the peculiar challenges of patent litigation and trials, and their willingness to put the cases to trial and verdict.
No other district does nearly so well. Even the number two venue — the District of Delaware — has lately shown less affinity for patent suits. Some have pointed to the fact that judges there have changed patent-case-specific procedures. Whatever the cause, Delaware’s share of new patent filings dropped by more than one-third from the second half of 2014.
Plaintiff-friendly — or fair?
Defendants win trials in the Eastern District at least as often as plaintiffs do. Getting to trial quickly and efficiently benefits both sides. The plaintiff of course must change the status quo to win, while the defendant would like the status quo to stay in place until the universe stops expanding and collapses in on itself. The Eastern District strikes an admirable balance.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
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