Patent Litigation Venues Revisited

The conventional wisdom:  we have all heard it (and probably repeated it).  When the topic is patent litigation venues, the raw numbers clearly point to a few well-known and oft cited heavyweights: Eastern District of Texas; Northern and Central Districts of California; Delaware.  The top 10 for 2007 filings:

Rank	District	Cases
1	E.D. Texas	371
2	C.D. California	338
3	D. New Jersey	203
4	D. Delaware	203
5	N.D. Illinois	143
6	N.D. California	140
7	S.D. New York	108
8	S.D. Florida	76
9	S.D. California	69
t10	D. Massachusetts	63
t10	M.D. Florida	63

But does a simple count tell the whole story.  Or, as Josh might ask, is there another way of keeping score—a Stableford system for patent infringement filings that brings some other venues to the fore?

Updated Table: Thanks to an eagle-eyed reader, I lost the N.D. California in the Table below during the migration from scratch pad to blog.  I highlighted in blue the changes from the prior table.  I left W.D. New York on at #11 since it seemed cruel to drop it entirely.

In Forum Shopping In Patent Cases: Does Geographic Choice Affect Innovation?, 79 N.C. L. Rev. 889, 903 (2001) Judge (née Professor) Kimberly Moore compared a district’s percent of patent cases to its percent of all civil cases to see whether a district received more or less patent action than its normal “share.”   

As another alternative methodology, we decided to look at a district’s patent infringement filings per judgeship.  After all, the Southern District of New York has 28 judgeships and the Southern District of Iowa has 3.  So sure New York gets more cases filed, but does a judge there, on average, deal with more patent cases than her colleagues in Des Moines?

What would that scoring system tell us?  For one, the possible patent case experience level for a judge with a hypothetical ordinary schedule in the area (a "Jhosita").  For another, if the number of judgeships is a proxy for the district’s size, then, like Judge Moore’s metric, this would indicate whether a district is getting more or fewer patent cases than “normal.”

Based on this alternative method, the Top 11 10 for 2007 looks like this:

Rank	District	Cases/Judgeship
1	E.D. Texas	46.375
2	D. Delaware	41.25
3	W.D. Wisconsin	25
4	C.D. California	12.07
5	D. New Jersey	11.94
6	N.D. California	10
7	D. Utah	8.8
8	D. Minnesota	8.57
9	W.D. Washington	7.0
10	N.D. Illinois	6.5
11	W.D. New York	6.0

For reference, the 2007 nationwide average for patent case filings per judge was 4.33.

While the top 6 from the raw count list remained in the top 10, the bottom half dropped out and a few new faces jumped in.  The most prominent is the Western District of Wisconsin--of course, 50 new cases and only 2 judges will push the average way up.  Its not a surprise that it made the list though--Judges Crabb and Shabaz are pretty well known and that district does get some publicity for its patent docket. 

For those that dropped off the list, only the S.D. California (#14, 5.31) D. Massachusetts (#16, 4.84) had per judge-filings above the average.  The others: S.D. Florida (#19, 4.22), M.D. Florida (#20, 4.2) and S.D. New York (#22, 3.85).

The data suggests to me that there are some boutique patent venues out there that might not get the publicity of the big chains but, like that great little restaurant or pub, have the knowledge and experience to rival or exceed some of the better known joints.

We have some other ideas for the data, and will provide some more findings and research in some upcoming posts.  In the meantime, let us know if you have any ideas or metrics you would like to see generated and we'll try and produce it (or at least get some law students to do it for us!).

Oh, and to answer the question, S.D. New York (#22, 3.85) judges, on average, just beat out their colleagues from the S.D. Iowa (#24, 3.66).

Source of data: For case filing information we used PACER and cases identified as Nature of Suit (NOS) 830 and opened in 2007.  Other than deleting a few cases that were listed as "Opened in Error" or the like, we did not cull or check the information for duplicates, transfers, etc.  Judgeships were based on information for each district from the Administrative Office of the U.S. Courts (http://www.uscourts.gov/cgi-bin/cmsd2007.pl)

Notes:  Of course, there are some assumptions and issues with the data.  For example, patent cases may not be evenly distributed across all the judges in a district—one courthouse within a district may get more patent filings than another.  Further, some districts may not have actually had the full complement of judges (due to illness or vacancies), so the actual average workload per judge may be higher. Also, some venues may be prone to multiple case filings per dispute, or getting a single plaintiff suing 12 defendants seperately versus getting 1 case with 12 defendants.    

Comments

[Bill B]

It would be interesting to see these compared to the population in the District. For example the CD Cal is a pretty big distirct population wise.