E.D.Texas is no longer the Top Place to File, Delaware Leads.
This blog post focuses on patent litigation filing trends during the year before and the year after the US Supreme Court venue limiting decision in TC Heartland, issued May 22, 2017. This is a follow up post to an earlier discussion of the Supreme Court’s venue-altering decision, here.
One year later, it is clear that there is a significant shift in where patent cases are being filed, with many more cases in Delaware since TC Heartland narrowed the rules for venue. Texas, by contrast, has seen a significant drop in filings, but is still a favored arena for some plaintiffs. For the time being, Texas judges continue to have a significant impact on the patent litigation landscape.
In the year prior to TC Heartland, 4,487 patent cases were filed. More than one third, or 36%, were filed in the E.D.Tex. (1,627), with another 12% filed in Delaware (550), with the Central District of California (C.D.Cal.), the Northern District of Illinois (N.D.Ill.), and the District of New Jersey (D.N.J.) each receiving 6% or less of total filings. The remaining 37% of filings were distributed throughout many courts.
Fig. 1 Patent Litigation Case Filings in Patent for 1 Year Prior to TC Heartland
May 23, 2016 through May 22, 2017
In the year following TC Heartland, from May 23, 2017 through May 22, 2018, 3,936 patent cases were filed, with Delaware receiving 23% of filings (907) and E.D.Tex. trailing with only 13% (525) of filings. C.D.Cal. and Northern District of California (N.D.Cal.), received 9% and 7%, respectively, with the D.N.J. receiving 5%. The remaining 42% of filings were distributed throughout the other district courts.
Fig. 2 General Patent Litigation Case Filings in Patent for 1 Year Following TC Heartland
May 23, 2017 to May 17, 2018
The sum of these facts is that Delaware is the leading court for patent litigation in the year since the TC Heartland decision, rather than the E.D.Tex. Patent litigation filings are also distributed throughout the country, rather than being heavily concentrated on one court.
In the year prior to TC Heartland, cases filed by High Volume Plaintiffs (HVP) (litigants filing more than 10 cases in one year) were heavily concentrated in Texas. Of the 1,902 filings by HVPs from May 23, 2016 to May 22, 2017, 60% of filings were in E.D.Tex., with only 10% in Delaware and lower percentages in the districts rounding out the top five courts for filings (N.D.Ill. (6%) C.D.Cal. (5%) and S.D.Fla. (4%)).
Fig. 3 High Volume Plaintiffs’ (HVP) Patent Litigation Case Filings in Patent for 1 Year Prior to TC Heartland
May 23, 2016 through May 22, 2017
In the year following TC Heartland, 1,296 cases filed by HVPs were filed in a variety of jurisdictions, led by Delaware with 26% (331), and followed by E.D.Tex. 19% (243), N.D.Cal. 9% (119), C.D.Cal. 9% (110), and the N.D.Ill. 8% (104).
Fig. 4 High Volume Plaintiffs’ (HVP) Patent Litigation Case Filings in Patent for 1 Year After TC Heartland
May 23, 2017 through May 22, 2018
This data shows that HVPs have changed their filing patterns following TC Heartland. As a group they are filing far less cases, only 1,296 filings in the past year, in comparison to 1,902 in the year before TC Heartland. Delaware leads in HVP filings, but in no way dominates the HVP filing landscape. Instead, their filings are distributed nationwide, rather than clustering almost exclusively in the Texas Courts.
Further, the decline in patent litigation filings from year to year following TC Heartland appears largely attributable to a reduction in HVP filings. The decline in overall patent litigation filings is from 4,487 to 3,936, a difference of 551 filings. By comparison, in the year following TC Heartland, HVP filings fall from 1,902 to 1,296, a difference of 606 filings, which is very close to that 551 filing drop in overall patent litigation filings.
The influence of certain judges in patent litigation is being reduced post TC Heartland. Judge Gilstrap, who oversaw 24% of patent litigation filings prior to TC Heartland, and a whopping 39% of HVP filings during the same period, is down to only 9% of all patent filings in his docket, and 15% of total HVP filings. Another judge in E.D.Tex. saw a similar plunge. Robert William Schroeder III, who was second with 19% of HVP filings prior to TC Heartland, falls to the fifth place with only 3% of filings in the year following it. Following TC Heartland, the Texas judges will no longer dominate patent litigation. Instead, judges in many jurisdictions nationwide, including Delaware, California, Illinois and other states, will make a more significant contribution to the volume of judicial decisions and opinions going forward.