Previously, Lex Machina noted the popularity of the Northern District of Illinois for design patent cases. For the past three years, the Northern District of Illinois has also been one of the most popular venues for a design patent case often referred to as a “Schedule A” case because the defendants are typically identified as “the Individuals, Partnerships, and Unincorporated Associations Identified on Schedule A” (or some variation thereof).
In a Schedule A case, the plaintiff sues a large number of accused infringers – usually Chinese online marketplace sellers – who are listed by seller identification name in a Schedule A that is attached to the complaint. Sometimes, the plaintiff files under a temporary pseudonym such as “ABC Corporation,” “XYZ Corporation”, or “John Doe.” (For example, 13 Schedule A cases were filed in the Northern District of Illinois in 2020 where the plaintiff initially filed under the pseudonym “ABC Corporation.”) The complaint, which identifies the asserted patents and the accused products, and the Schedule A are often filed under seal on the grounds that the accused infringers would otherwise remove their products from the market, destroy relevant evidence, and conceal assets if the filings were public. The complaint is usually accompanied by an ex parte motion for a temporary restraining order that includes a temporary injunction, a temporary asset restraint, and expedited discovery. This ex parte motion is also filed under seal.
Out of the 222 design patent cases filed in the Northern District of Illinois between January 1, 2020 and December 31, 2022, 155 (or 69.8 percent) were against Schedule A Defendants. In fact, 85 percent of the 182 design patent cases filed in the U.S. against Schedule A defendants during the time period were filed in the Northern District of Illinois.
In the past three years, the number of design patent infringement cases filed against Schedule A defendants in the Northern District of Illinois increased from 38 in 2020 to 54 in 2021 to 63 in 2022. In the first nine months of 2023, 59 design patent infringement cases were filed against Schedule A defendants in the Northern District of Illinois.
Schedule A cases have been criticized for bypassing procedural safeguards. However, they have become an increasingly popular tool for the owners of design patents to pursue alleged counterfeiters en masse. Plaintiffs in the Northern District of Illinois overwhelmingly prevail, with the median time to a permanent injunction a little more than three months.
Out of the 155 cases filed in the Northern District of Illinois during the three-year time period from January 1, 2020 to December 31, 2022, the claimant prevailed 75 percent of the time on default judgment or consent judgment, and the claim defendant prevailed zero percent of the time. The requested injunctive relief has almost always been granted: temporary restraining orders (100 percent), preliminary injunctions (99 percent), and permanent injunctions (100 percent). Furthermore, the median time to injunctive relief is 11 days for a temporary restraining order, 42 days for a preliminary injunction order, and 105 days for a permanent injunction order.
Fifty-one percent of these Schedule A cases filed in the Northern District of Illinois during the time period were filed by three plaintiffs: Oakley, Inc. (43 cases), Deckers Outdoor Corporation (23 cases), and Dyson Technology Limited (13 cases).
Unsurprisingly, for the Northern District of Illinois judges with design patent cases, Schedule A design patent cases can comprise a significant percentage of their docket. The number and percentage of Schedule A design patent cases filed from 2020 to 2022 before the top ten district court judges for design patent cases in the Northern District of Illinois is shown below:
|Judge||Design Patent Cases||“Schedule A” Design Patent Cases||% “Schedule A” Design Patent Cases|
|Martha Maria Pacold||17||13||76.5|
|Steven Charles Seeger||14||11||78.6|
|Virginia Mary Kendall||14||12||85.7|
|Franklin Ulyses Valderrama||13||8||61.5|
|Sharon Johnson Coleman||13||12||92.3|
|Thomas Michael Durkin||13||7||53.8|
|Edmond E-Min Chang||11||9||81.0|
|Matthew F. Kennelly||11||8||72.0|
|John Robert Blakey||10||7||70.0|
|Elaine E. Bucklo||10||5||50.0|
Lex Machina will provide regular updates on patent litigation trends, including design patent cases and Schedule A cases.