Guest Post: Popularity of Delaware Is On the Rise

Guest Post by Professor Paul Janicke

Now that the new patent statute has put an end to qui tam actions and limited the joinder of defendants accused of infringement, we can once again take a meaningful count of patent suit filings, almost all of which are now infringement actions or DJs for noninfringement or invalidity. I ran a study of cases filed in the six-month window beginning October 1, 2011, shortly after the litigation parts of AIA became effective, through the end of March 2012.

There were 2,483 suits filed in that period, or at an annual rate of nearly 5,000 new cases. [Source: Lexis Courtlink.] The increase over earlier years, where the largest number of new patent case filings was just over 3,000, is undoubtedly due primarily to the AIA’s restraints on joining non-cooperating accused infringers in a single civil action. So there may not be more patent litigation going on, but only more files being opened with fewer defendants per action.

We should expect to see venue shifts over prior years, as accused infringers are able to move their cases to districts that are more convenient to them, generating considerably more work for the Judicial Panel On Multidistrict Litigation to sort out where the early proceedings should occur.

Perhaps for these reasons we now see Delaware approaching the top of the list for most new filings. Eastern Texas is still first with 407 filings in the six-month period, but Delaware is a close second with 388. Northern California is a distant third with 194. (The next three are Central California (169), Northern Illinois (142), and New Jersey (90). Delaware has always been a somewhat busy patent forum. However, its share of total national patent suit filings has moved up rather dramatically: in 1995 it had 3.69% of the national total of 1,626 cases; 4.53% in 2005; 6.11% in 2008; and now for the six-month window reported here its share has jumped to 15.63%. Several commentators have noticed in the past two or three years that results in Delaware are generally good for patentees. Litigants apparently agree.

4 thoughts on “Guest Post: Popularity of Delaware Is On the Rise

  1. One area often overlooked is reversal rates. Smart NPEs shifted their lawsuits from Texas to Delaware almost 2 years ago, well before AIA when it became clear that ED Tex judgments would be more difficult to survive an appeal.

    Delaware, too, will run its course as cries of “forum shopping” grow louder. After Delaware, I wouldn’t be surprised to see Central California make a run. Many of the “younger” firms that specialize in NPE litigation are the ones filing there, and if they’re successful, they’ll attract more NPE clients and file in LA whenever possible.

  2. Several commentators have noticed in the past two or three years that results in Delaware are generally good for patentees. Litigants apparently agree.

    Time for the Federal Circuit to interpret Third Circuit venue law.

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