The following article was written for my Retail Patent Litigation Blog, and it is just as relevant for Chicago readers. So, I am reprinting it here with minor, Chicago-specific revisions.
BNA has an interesting article by James Pistorino of Perkins Coie and Susan Crane looking at the impact of the America Invents Act (“AIA”) on district court patent litigation filings. The article looks at 2011 data, only one quarter of which is after enactment of the AIA. But even a quarter’s data tells a clear story:
- Delaware leap frogs the E.D. Texas as the district of choice for patent plaintiffs with nearly 50% more filings than the E.D. Texas.
- The number of defendants per case has dropped significantly in almost every district, with the E.D. Texas as a notable exception.
- The number of total defendants sued appears to be remaining relatively steady.
This early data suggests exactly what we expected. Overall, the AIA did not control patent litigation filings, but it did reduce average case size and shift venue. The big question from the study is “why Delaware?” Here are some key reasons:
- Retirement and new judges on the E.D. Texas have increased uncertainty and time to trial in the E.D. Texas, for both plaintiffs and defendants.
- In contrast, Delaware’s bench has remained consistent, and is also experienced with patent litigation.
- A recent transfer denied by Delaware Judge Robinson noted that defendants incorporated in Delaware (as so many are) cannot “complain” about being sued in Delaware.
- While Delaware is not a rocket docket and lacks local patent rules, Delaware is relatively fast and has strong local patent customs with each judge.
Additionally, it is worth noting that the AIA has had little impact on the rest of the top five patent litigation districts – C.D. California, N.D. California and N.D. Illinois.