Disjunction in IP Litigation: Patent Courts are not Copyright Courts

By Dennis Crouch

In the last four months of 2012 about 4,000 intellectual property lawsuits were filed in federal courts. Of these, about 2,000 were patent cases along with 1,000 copyright and 1,000 trademark cases. Patent litigators are well aware of the ongoing popularity of the Eastern District of Texas and the rising popularity of the Delaware court. I wanted to look at how that concentration is different on the copyright and trademark side. It is easy to draw two quick conclusions from the case filings. First, I note that the most popular patent infringement jurisdictions are among the least popular jurisdictions in the other two areas. Very few copyright or trademark cases are filed in EDTX or DDEL. Second, I can conclude that the patent litigation cases are much more highly concentrated in a smaller number of jurisdictions than that of either copyright or trademark. (One measure of this is that the top three patent jurisdictions have 59% of the patent cases while the top three copyright and trademark jurisdictions have 32% and 28% respectively). Part of the explanation for the high concentration of patent cases is the clustering of NPE cases that involve a single plaintiff against multiple defendants filed before a single court. However, I would suggest that the driving explanation is simply the popularity of EDTX and DDEL. The appellate courts provide even more disjunction between the IP regimes since almost all of the patent litigation appeals are heard by the Court of Appeals for the Federal Circuit whereas that court sees very few copyright or trademark infringement actions. Likewise, the appellate courts that hear the most copyright and trademark appeals never hear patent appeals. As I have written previously, the bulk of governmental money spent on administering intellectual property rights goes through the US Patent & Trademark Office (PTO) — an executive agency housed within the Department of Commerce. The US Copyright Office, however, is not part of the administration but rather is housed within the Library of Congress, which itself is managed by Congress rather than the President. Thus the US Copyright Office does not officially represent the Administration or shape Administration policy.

All of this is an odd setup – especially with the rising and overlapping market role for intellectual property rights. From a theoretical standpoint, it is unclear whether the fractured structure leads to rights that are either too strong or too weak. What we can tell is that the structure leads to a lack of coordination of the various IP systems within the US.

For its part, the US Supreme Court has an almost regular practice of doing a comparative analysis in its intellectual property cases that considers how a particular issue is handled in other areas of IP law. Harmony in these areas is part of what the court calls a ‘carefully crafted balance.’ To this end, the court has recognized that the scope and coverage offered by patent law is relevant to the relevant scope and coverage of copyright and trademark protection. Likewise, in the upcoming fee-shifting cases, we can expect that the court will use copyright and trademark precedent as a guide. Perhaps unfortunately, few lower courts have the cross-IP-jurisdictional experience of the US Supreme Court that would be necessary to reasonably draw the same types of parallels.

The chart below shows the most-popular 25 jurisdictions for case filings in the final four months of 2012.

 

 

 

 

 

 

Thanks to LexMachina for this data.

20 thoughts on “Disjunction in IP Litigation: Patent Courts are not Copyright Courts

  1. This is an amusing set of results. The study by the Hruska Commission in the early 1980s that led to the formation of the Federal Circuit in 1982 found that formation of a specialized appellate court for patents — the Federal Circuit — was justified to eliminate a major incentive for forum-shopping. At that time, the concern was inconsistent application of federal patent law by the regional circuits.

    Today we have more forum-shopping than ever, due to NPEs and the inconsistency of application by district court judges. And the Federal Circuit is doing very little to combat that. It is ironic that there is near-zero forum shopping in copyright and trademark cases notwithstanding wide disparities in the law by the regional circuits.

    Fact is, cases are filed in Delaware and Texas because the judges have strong local economic incentives to encourage plaintiffs to file there. The result is that they do not enforce the evidence rules (which is why damages theories that would get Daubert’ed anywhere else will make it to trial in Texas and Delaware), the judges resist transfer, do not grant summary judgment, and when you get to trial (and you will), the jury pools are largely uneducated in both districts. People try to deny these factors, but as a patent litigator who represents parties on both sides of the “v.”, it is true. I’ve had several cases where the settlement demand dropped dramatically the day after a case was transferred from Texas to California.

    1. Lode_Runner, there was another reason for formation of the Federal Circuit, and that was that the CCPA never heard appeals District Court’s infringement cases, but was a primary source of patent law on “patentability.” Moreover, this CCPA, led by judge Rich, the first patent attorney ever to be appointed to a Court of Appeals, was seen as far more patent friendly and any circuit court.

      And they were right – look at what happened to patent law as a result.

          1. I am talking about those addicted to putting their fingers in the nose of wax and protecting their implicit writings rather than the actual words of Congress.

            I am talking about those that are in a p1ssing match with the judicial body explicitly created by Congress to bring order to patent law and that who simply cannot due to the nonsense from on high.

            I am talking about those that are supposed to protect the Constitution and its allocation of power, but cannot seem to abide by it themselves.

            1. You may think, anon, that ending forum shopping was the purpose of creating the Federal Circuit, but let me assure you it was not. That was a pretext.

              It’s purpose was to get the other circuits out of patent law and to centralize it on the CCPA that was far more friendly, controllable, and that was lead by none other that one of the movers and shakers in the patent bar.

            2. OK, then please explain why they didn’t simply pick an existing Circuit court of general jurisdiction like the DC Circuit that was well respected to hear all appeals from the District Courts?

              You fail to understand that I was there at the time and I know why things were done the way they were done.

              Forum shopping was just a pretext. The whole effort was to get all appeals to the CCPA and that because it was very friendly to patents.

            3. I have seen your, um, ‘reasoning’ for things that you were ‘there for’ – and no, such is not any better than the reasoning I see now in our discussions.

              Sorry, the equivalent of “just trust me” will not play for you.

  2. RING & PINION SERVICE INC. v. ARB CORPORATION LTD.
    link to cafc.uscourts.gov

    The Federal Circuit reversed a finding of no doctrine of equivalents infringement and ordered the District Court to enter a judgment of infringement based upon a joint stipulation that the accused products were an equivalent. The District Court had ignored the stipulation and had held that a finding of equivalents would vitiate a claim term. The Federal Circuit stated that vitiation essentially means that no reasonable jury could find equivalents. But, because here the parties had stipulated to equivalents, the court should have entered judgment based upon the stipulation.

    The court took exception, strong exception, to the infringer’s argument that the lack of foreseeability of the equivalent foreclosed a finding of equivalents. “Foreseeability,” the court remonstrated, has nothing to do with equivalents – either the doctrine of equivalents or means-plus-function equivalents.

    Moreover, the doctrine of equivalents can apply in the case of means plus function claims. If an accused device does not have the identical function, it does not literally infringe. Even so, equivalents infringement still might be found. This requires a showing that that the accused device performs substantially the same function.

    1. the infringer’s argument that the lack of foreseeability of the equivalent foreclosed a finding of equivalents

      I would have thought the opposite was more accurate, i.e., if the equivalent element was “forseeable” then the applicant should have claimed it literally.

      “Foreseeability,” the court remonstrated, has nothing to do with equivalents

      Uh … since when? link to google.com

      the doctrine of equivalents can apply in the case of means plus function claims. If an accused device does not have the identical function, it does not literally infringe. Even so, equivalents infringement still might be found. This requires a showing that that the accused device performs substantially the same function.

      That also seems like a shift. I seem to recall that the equivalent to a recited means is one that performs the identical function in substantially the same way to achieve substantially the same result. Does it matter much? I’m not sure. I wish the Fed. Cir. would stop trying to restore the d.o.e. to its previous state. That’s folly.

      It’s also odd that they would choose this case, where there doesn’t appear to be a d.o.e. issue due to the stipulation, to present their discussion.

  3. Dennis, your above figure of 2000 patent suits in the 4th quarter of 2012 is interesting because that would be 8000/yr if annualized! The PWC study said that: “The number of patent lawsuits filed spiked by almost 30% in 2012 to over 5,000, with some of that increase attributed to the AIA’s ‘anti-joinder’ provision. Did that kind of increase also occur in 2013?

    1. Paul. Thanks for this. You caught an error in my post. I had written Fourth Quarter (final three months), but the data actually reflects the last four months of 2012. I have edited the post to reflect that change.

  4. To this end, the court has recognized that the scope and coverage offered by patent law is relevant to the relevant scope and coverage of copyright and trademark protection.

    “relevant”

    That is an awfully wishy-washy term when it comes to comparative analysis.

    Especially given several of the obvious differences between the three major items:

    Trademark is from a separate constitutional origin.
    Copyright is for creativity and allows for Fair Use and independent creation.
    Patents are for utility (with no Fair Use and independent creation.

    Clarity in law should not be sacrificed in the name of relativism or ‘relevantism.’

      1. Oh, don’t get me wrong. Sure, there is relevance in that all three items are relayed to the field of Intellectual Property.

        But let’s also not kid ourselves about the very real differences. Difference that for a start you can look at my post of 3.

        Yes, I know that you have a ‘concept’ about patents and an overlap with copyright Fair Use and Independent Creation, but really, WHATEVER does not really fly too well in dismissing differences that exist for very real reasons.

  5. Dennis,

    Not surprised that C.D. Ca.l has the highest percentage of copyright cases. That district includes all the movie makers.

  6. So rather than getting new laws to cripple the patent system maybe the likes of Lemley should just try to tweak the local rules of the three top jurisdictions.

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