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Report Sheds Light On Best Venues To File Patent Suits

Publication Date: 
December 01, 2010
Amy Miller

Shopping around for the best venue to file a patent suit? Law professor Mark Lemley, director of the Stanford Program in Law, Science, and Technology, may have made the task a little easier.

He's analyzed 21,667 patent suits filed since 2000 in a new report " Where to File Your Patent Case," published in the fall issue of the AIPLA Quarterly Journal. He looked at various factors, such as win rates for both plaintiffs and defendants and how long it takes different courts to resolve cases. And the results are surprising.

The Eastern District of Texas may have a reputation as a rocket docket, but it's anything but, according to the report. In fact, it's one of the slowest dockets, only slightly faster than the Northern District of California, where it takes about a year and three months to resolve cases.

"Because the Eastern District of Texas has been such a popular forum for plaintiffs, it's actually pretty slow now," Lemley said.

Now the Western District of Wisconsin and the Eastern District of Virginia are the fastest dockets, resolving cases in just over six months. And if you're anxious to try a case, and do it quickly, the Western District of Wisconsin may be a good choice. The time to trial there is about eight months, shorter than any other district.

Meanwhile, contrary to popular belief, the District of Delaware is actually friendly to plaintiffs, according to Lemley's findings. Claimants won just over 45 percent of cases filed there, compared to 40.3 percent in the Eastern District of Texas and 26 percent in the Northern District of California.

In addition, more cases make it to trial in Delaware (11.8 percent) than in any other district. The Eastern District of Texas came in second with 8 percent going to trial. In the Northern District of California, only 3.1 percent of cases are tried.

"Because Delaware judges are so reluctant to grant summary judgment, many more cases go to trial," Lemley said. "And at a jury trial, plaintiffs always have an edge in patent suits."

And while the Northern District of California may have a reputation as a pro-defendant forum, that wasn't necessarily reflected in Lemley's survey.

"It ended up evenly balanced," Lemley said. "I think the conventional wisdom that plaintiffs wouldn't file their cases here isn't necessarily right."