Concentration of Patent Cases in the Eastern District of Texas

Patent litigator James Pistorino has emerged from the collapse of Howry as a partner at Perkins Coie. In a recent BNA article, Pistorino provided a brief analysis of patent complaints filed in 2010 with a focus on the Eastern District of Texas. In 2010, E.D. Texas held a slight lead in the absolute number of patent cases filed. Excluding false marking cases, 299 cases were filed in E.D. Texas compared with 255 in Delaware, 225 in the Central District of California, 180 in the Northern District of California, and 179 in the Northern District of Illinois. Pistorino argues that E.D. Texas’s slight lead in the number of cases filed masks the jurisdiction’s continued overwhelming popularity. In particular, he considered the number of defendants sued for infringement and found that in 2010 more defendants were sued in E.D. Texas than in Delaware, California, New Jersey, and Illinois combined. Figure 2 from the article highlights this conclusion. Based upon the data reported, Pistorino goes on to question “whether the forum shopping issue in patent cases (particularly in the Eastern District of Texas) has been solved and whether increased scrutiny of improper joinder of defendants is warranted.”

See James Pistorino, Concentration of Patent Cases in Eastern District of Texas Increases in 2010, 81 BNA Patent, Copyright & Trademark Journal 803 (2011) (Subscriber access only).

18 thoughts on “Concentration of Patent Cases in the Eastern District of Texas

  1. 18

    Well Geotag, suing 150+ defendants a pop, sure is skewing those stats – but just a bit.

  2. 16

    The E.D. Tex. seems pretty clogged right now. I imagine it’s only going to get worse once Judge Ward retires.

  3. 15

    I would like to know an answer to a question off topic.. Why would the Trademarks done by an Individual that were filed with applicants in Kentucky… then be erased on my Computer, and still not be showing on my Computer in the database. Is that a Screen or a Worm? Or a worm called Screeny?

  4. 14

    That may hit some Constitutional issues, notably Due Process.

  5. 13

    I believe the amended version of HR 1249 includes a provision restricting joinder aimed at stopping the fun in EDTX (and the Walker suits in DEL):

    298(a)(2) “For the purposes of this subsection, accused infringers may not be joined in one action as defendants or counterclaim defendants based solely on allegations that they have infringed the patent or patents in suit.” link to

  6. 12

    Thanks Ned, but I have to note that the CAFC did not do a thing about inappropriate venue cases in E.D. TX even in individual party cases until after the en banc 5th Cir. Volkswaggon decision, and the number of favorable CAFC mandamus venue transfer decisions since then is a very small percentage of the total number of patent suit defendants sued there.

  7. 11

    clogged jurisdictions, slow and excessively expensive litigation, mmmm – sport O Kings and infringer, er um, defendants’s delight.

    What’s not to ha_te about sure and swift Justice?

  8. 10

    In patent infringment and inventorship disputes texas should represent a neutral venue the way I designed it where neither party has the home field advantage what I mean is local jury bias potential especially in instances where the business should have been located locally and jobs from the community have been lost by the ip thiefs of infringers. Clearly in indegency cases the venue of the financially disadvantaged should be recognized also.

  9. 9

    Well, if the alternative is a jurisdiction that is clogged and for that reason slow, it is ideal for defendants and a possible killer for the patent owner.

    Litigation fills the time and space allocated for discovery. The more litigation and expense, and the more delay, the better it is for the defense.

    In this, I do not suggest that the judges from one court are biased and from another court they are not. I think judges on the average are completely dedicated to justice.

    But their dockets can limit the time they can devote to complex cases.

  10. 8

    Please turn down the anti-aliasing when converting the images. This one is too blurry to make out comfortably.

  11. 7

    Ned Patent owners like the jurisdiction because it is fast and it is patent savvy.

    Are those the only two reasons?


  12. 6

    “I wonder about you, Mr. James Pistorino. Who do you represent?”

    What a t00l.

  13. 5


    because the court works to meet Justice, it is a bad thing…?

    Eeks, looks like I agree with Ned here.

  14. 4

    Ned/Paul — I think you both raise some good points.

    Just an observation, but when a patent owner sues multiple parties in different jurisdictions, the Multi-District Litigation procedure is often used to centralize the litigation and decide issues common to the various defendants. In some ways, the practice of multi-defendant litigation short-circuits the need for the MDL procedure.

    Also, for ED-Tex court watchers, Judge Davis has issued rulings dealing with multi-defendant cases, including suspending discovery, giving the common defendants an opportunity to bring targeted summary judgment motions on claim construction and other issues believed to be case dispositive.

    This flexibility is another example of why East Texas is so popular. Because the docket is light in virtually all other matters (e.g. criminal), the judges have ample time to consider creative, flexible solutions to complex litigation.

  15. 3

    Paul, I attended theAIPLA session this past October on managing joint defenses. It is indeed a problem, as you mention.

    But you and I both know that a major reason for the phenomena is the Federal Circuit almost systematic overruling of venue rulings from the ED Texas. Patent owners like the jurisdiction because it is fast and it is patent savvy. In contrast, defendants like to slow things down, to drive up plaintiff’s costs (and I also think that litigation firms like to milk cases for all their worth), and to divide and conquer. The more different jurisdictions ruling on validity, the more likely it is that the defendant can win at least one verdict. Due to collateral estoppel, one is all it takes.

    Patent owners facing the alternative need to have their cases tried all at once in one court to the extent feasible. There are common issues of claim construction and validity that are best handled by one court. After that, the trials on infringement can be broken up to the extent the issues are not overlapping.

    Forcing the cases to be split up with such common issues of law and fact that need to be tried in one court, to me, is the real abuse.

  16. 2

    “..whether increased scrutiny of improper joinder of defendants is warranted” is a perfectly valid question when a complaint lists dozens of different defendants with very different products [mostly not even identified in the complaint] in order to make sure that none of the defendants can get a venue transfer out of E.D.TX, even if none of them have any logical reason to be sued there.
    However, I have not heard of any valid legal solution for that problem? [Requring them to be split up into large numbers of individual suits on the same patents has its own disadvantages.]
    A bigger problem seems to be that these multi-defendant suits seem to spawn joint defense agreements with personel that seem take forever to agree on anything even if they all understand what is really needed, like getting reexaminations filed fast enough to be effective.
    The above statistics are very useful – data just on the number of suits being filed, which others have used instead of the number of defendants being sued, is highly misleading.

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