By Jason Rantanen and Joshua Haugo*
During the oral argument in Octane Fitness, Justice Alito asked an interesting question about the frequency at which district court judges hear patent cases. In response to a comment from Mr. Telscher that “I do think district court judges see a lot of patent litigation,” Justice Alito asked:
Is that really true? There’s nearly 700 district judges in the country. If we had a statistic about the average number of patent cases that a district judge hears and receives on, let’s say, a 5 year period, what would it be?
Oral Argument Transcript at 14 (full transcript available here).
The question was posed in such a way as to imply that patent cases were a rare occurrence for most district court judges, and since neither counsel nor research into secondary sources provided a ready answer, we pulled data from Lex Machina to seek some insight into this issue.
Since we were interested in frequency, we looked at the number of patent cases filed between 2010 and 2013 on a per judge basis. Our analysis shows that while patent cases are relatively common generally, their distribution is indeed highly skewed. Nevertheless, most active judges heard at least one patent case during the time and the median number of patent cases received per judge was higher than one might expect (it’s eight). The below chart illustrates the number of patents cases received by each judge who was active during the 4-year time period, sorted by the number of patent cases received (i.e.: the judges who heard no patent cases are to the left and the judges who heard the most patent cases are to the right, with Judge Gilstrap being judge #760). The chart cuts off at 100 cases received, but the line continues up with seven judges receiving more than 600 patent cases each (Judges Robinson, Sleet, Andrews, Schneider, Stark, Davis, and Gilstrap).
Methodology: To obtain the data set, we ran a search on Lex Machina for all patent cases filed between 2010 and 2013. We then copied the judge data from Lex Machina’s dynamic filter, giving us the number of patent cases per judge. We obtained data on all district court judges (not just those that appeared in the Lex Machina search results) from the Federal Judicial Center. This allowed us to filter the results to include only judges that met our criteria of “active” judges for the time period (i.e.: judges that were confirmed to a district court prior to 12/31/2013 and had not retired or been terminated until after 1/1/2010). There were a total of 760 active district court judges between 2010 and 2013, although some were active for only a short time during the window we analyzed. We were also able to limit our data set to only judges who were active for the entire time period (i.e.: who were confirmed to a district court prior to 1/1/2010 and who did not retire or take senior status prior to 12/31/2013); a chart using this data is below.
Background Statistics: In total there were 19,325 patent cases filed before 865 judges over the four year period. The judge with the most patent cases was Judge Gilstrap of the Eastern District of Texas, who received 1,636 patent cases. Although several judges received an extraordinary number of cases, many judges that heard patent cases had only 1 patent case filed before them during the 4 year window we examined.
Of the 19,325 total cases heard in District Courts, 18,061 cases were heard by 760 active judges. The remaining 1264 cases were heard by 165 judges that were primarily senior status, although there were several appellate judges sitting by designation. For this analysis, we did not include any cases filed before judges that were not active during at least some portion of the period.
There is one important caveat to this data: it reflects patent cases received by the judges. As a result, it does not directly report on the number of patent cases actually heard by district judges (since sometimes case settle soon after filing), nor does it directly report perhaps an even more important statistic relating to Justice Alito’s questioning, that of judges’ experience rendering substantive decisions in patent cases. This data does, however, provide some insight into these issues because we know that both figures cannot be greater than the number of patent cases received and (unless there is a particular selection bias operating in certain districts that affects settlement rates), it seems likely that the distribution of both patent cases heard and decided would follow a similar pattern.
Analysis: The average number of cases received by active judges was 23.8 cases over the span of four years, or almost 6 cases per year, while the median was 8 cases over the four-year span. While the highest districts in terms of filings did affect the mean, removing the three highest (the Eastern District of Texas, Central District of California, and District of Delaware) still resulted in an average of 13.3 cases per judge. Of the active judges, there were 71 that did not receive any patent cases within the window. Thus over 90% of active judges received at least 1 patent case filed during the window.
Additionally, we looked at the numbers for judges that were active throughout the 4 year time period, in order to get a sense of what an average “active” judge might see. These judges were commissioned prior to 1/1/2010 and had not been terminated or retired prior to 12/31/2013 (thus excluding both judges who were on the bench for only a part of the period and judges who took senior status during a portion of the period). For this set, there were a total of 11,096 patent cases received by 434 judges. The average number of cases received was 25.6 with a median of 11 cases over the four-year period. Removing the top three districts from this data set still produced an average of 20 cases and a median of 10 cases received over the four-year period. In total, only 28 of the 434 active judges did not receive a patent case during this time; over 93% of judges received at least 1 patent case. The graph below shows a frequency chart of only judges that were active during all 4 years (the bar on the far right reflects the fifteen judges who received over 100 patent cases during the four-year period).
While the numbers suggest that patent cases are not unicorns, even outside of the top three districts, there also may be some merit to Justice Alito’s concern that at least a substantial number of District Court judges do not hear more than an occasional patent case, and thus may find it difficult to determine which cases are “exceptional” based on their past experience with other patent cases. Of course the ultimate issue may not be one of determining whether a patent case is exceptional, but in simply determining whether a complex litigation suit is exceptional. And as to that, as Mr. Telscher observed in response to Justice Alito’s questioning about numbers of patent suits received by district court judges, “I don’t know what that number is, Your Honor. But I know that district court judges carry a widely varying docket of different areas of law and are called upon to learn the law and assess the reasonableness of those positions.”
*Joshua Haugo is a second-year law student at the University of Iowa College of Law.
Edit: Michael Risch pointed out that there may be an effect depending on how Lex Machina counts transferred cases, which he estimates at 15-20% of cases. I’m looking into the way that Lex Machina counts these types of cases: its database certainly includes both the transferor and transferee dockets, but it does not appear to count the transferor judge as being the “judge” of the case. Instead, it appears to only count the transferee judge. I’ll update the post once I have a better sense of this effect.
Edit2: Based on further investigations (and subject to confirmation from the folks at Lex Machina), Lex Machina counts both the transferring court and the transferee court; in other words, its not deduplicating. The effect of this is to artificially inflate, perhaps by as much as 15-20%, the case counts below. This causes me to echo the caution I noted originally: just because a judge “received” a case does not mean that he or she “heard” it, let alone on the substantive merits.
Edit3: Lex Machina confirmed that “each separately assigned civil action number is a case except, if it is an intradistrict transfer, we detag it so it does not count as a patent case. In the event of a inter-district transfer, we will have one case with the outcome “procedural: interdistrict transfer” and the other case with whatever its outcome was.” So what I observed above holds.
Lex Machina finally got around to updating their litigation rate charts. Remember when Gene Quinn and his fellow script-reciters started doing cannonballs in the pool following the January 2014 blip in patent filings? Well, turns out March was also high (20% higher than March 2013!!!!!!!!!! for those who think that such comparisons matter) and April 2014 looks to be the highest number of patent litigation filings/month in recorded history.
I look forward to the retraction of Gene’s silly speculation and his pathetic “analysis” of the Jan/Feb numbers. LOL! As if.
link to lexmachina.com
“and his fellow script-reciters ”
LOL – translation: you are all ‘they.’
or perhaps you forgot to include in the March 2014 context recent litigation spurring more filings….
(d@mm – there’s that objective view and context messing up Malcolm’s world again…)
One does have to wonder why some judges get so few patent cases. We know that ED Texas historically got a lot because they were a backwater and had a lot of time to devote to patent cases. They were a so-called, rocket docket. That might no longer be the case, but the court has built up considerable expertise in patent cases so that they can handle them efficiently.
And this is why the defendant’s bar want out — plus they want to scatter cases across the planet in order to increase the patent owner’s expense.
But it is not clear why some judges get so few. Are they located in jurisdictions crowded with criminal cases, for example? Are they located in Alaska as opposed to Chicago or San Francisco?
Why?
That might no longer be the case, but the court has built up considerable expertise in patent cases so that they can handle them efficiently.
And this is why the defendant’s bar want out
Pretty sure the defendant’s bar would love to see patents “handled” efficiently as well. That’s why they spent time teaching the ED Texas about subject matter eligibility.
they want to scatter cases across the planet
Seems to me most defendants would simply prefer to be sued in a venue reasonably related to the location of their “control center”, their activities, their witnesses, evidence, etc., rather than on the basis of some sham “place of business” or the home of the patent lawyer/inventor who might as be living at a Starbucks in Anchorage because the “act of inventing” consisted entirely of copying boilerplate from other computer-implemented junk patents and then typing up some claims.
You did see the hundreds of filings shoved into the EDT court on April 23-24, didn’t you, Ned? The defendants were indeed “scattered around the planet.” The patentees? Not so much.
Well, MM, the people who get sued in the ED Tex. are typically sued in groups so that one court can handle common claim construction and validity issues. Scattering the cases far and wide does not help judicial efficiencies, and certainly puts the patent owner at risk when there are multiple courts considering the very same claim construction and validity issues.
As I have noted before, in cases where multiple defendants litigate, typically one firm can take or should take the lead on common issues of law and fact, thereby minimizing litigation costs all around. But the defendant bar simply does not like this, as it interferes with their bottom line as attorneys, and it complicates their objective of making things expensive as all get out for patent owners.
Where one patent owner and one defendant are involved, of course the case should be filed where the patent owner resides, or where the defendant’s witnesses reside, as the case may be. If foreign companies are sued, I don’t see why one US district court is better than another for venue purposes, do you?
“spent time teaching the ED Texas about subject matter eligibility.”
Who taught them about the “Troll” slur? (and yes, it is important to keep in mind why they did that – and it was not for the benefit of the public).
The transcript of the oral argument in Nautilus v. Biosig is out.
Link to transcript (PDF)
If anyone has a prediction on what the new test will be, let’s here it. Nautilus did not have a proposal and did not even seem prepared to argue their case. Biosig’s argument based on Eibel process was borderline ridiculous.
The SG sent a second-stringer, who did not help.
At the end of the day, the oral argument showed the attorneys unprepared, but the court justices seem to understand the issues fairly well.
“If anyone has a prediction on what the new test will be, let’s here it.”
From the oral args it seems like all the judges that chimed in were in love with the “one of ordinary skill is reasonably appraised of what the scope of the claim is” or similar standard.
Well, that certainly takes the whole idea of claim construction out of the equation.
?
And I thought the SG’s man was ok.
On your edit2 notes, if you can determine direction, you may have an interesting “who is passing the buck to whom” story…
I don’t have full data, but in general, cases leave E.D. Tex., and move into D.Del., N.D.Cal, and C.D.Cal (among others).
Thanks – is there a particular judge involved (at either end) that stands out data-wise?
comment from Mr. Telscher that “I do think district court judges see a lot of patent litigation,”
Based on the data, this seems like a highly inaccurate and misleading statement.
Perhaps a comparison to other types of litigation heard by district court judges would provide the necessary sense of perspective. For example, what types of cases are heard most and what are the relative frequencies at which those cases are heard?
Good comment Malcolm.
I’d also like to know though whether or not there aren’t a lot of judges that aren’t getting any patent work that are left out of the sample because their names didn’t pop up on any cases that were in the stack of cases which were reviewed to compile the data.
To avoid that problem, we used the listing of district court judges from the Federal Judiciary Center to compile our full set of district court judges. We didn’t use only the list of judges who received patent cases.
k thx
Data-sorting question:
Please define what is a distinct “case.” Is it:
* The initial file number;
* The consolidation of all matters later joined as “related”;
* The interpretation of a single patent against multiple defendants in multiple actions, but consolidated under a single judge;
* The division of a single initially filed action into multiple matters (often because not all of the defendants are subject to personal jurisdiction in the same district);
* Something else?
I ask because it’s not at all clear to me that “number of cases” is either an inherently meaningful measure or defined consistently throughout the dataset… meaning that the dataset may result from multiple, otherwise-noncomparable populations, and that conclusions drawn from improperly treating them as congruent are probably inaccurate.
We use “case” here as meaning a civil action that is assigned its own file number by the clerk of the court. Thus, cases that were joined subsequent to filing would still count as separate “cases” because each would have had its own original civil action number. Similarly, cases that were transferred in whole or in part are counted as separate “cases,” since each is assigned its own civil action number. The result is that there is some inflation occurring as a result of transfers. In addition, simply because a case is “received” by a judge does not mean that it will proceed on the substantive merits; cases sometimes settle early on in litigation. All the above data shows are the numbers of civil actions “received” by a district court judge. (And like most data, that figure is open to interpretation).
As some have suggested, a more useful metric for determining district judge experience with patent cases might be the number of, say, claim construction orders, since that would indicate that the case proceeded to a certain (important) point in the litigation. The original question posed was, however, the number of cases received – so that’s what we were trying to get at. (We deliberately avoided the question of whether a case was “heard” because that involved substantial definitional problems).
Also OT regarding recent comments by a federal circuit judge.
It seems we finally have the federal circuit asking for congress to step in and resolve their inability to apply the law.
link to law360.com
LOL – place the blame accurately 6 – the federal circuit has been boxed in (and beaten up) by the Supreme Court.
Thank god someone did it.
the federal circuit has been boxed in (and beaten up) by the Supreme Court.
And deservedly so. Also: more to come.
LOL – you quite miss the point of the comment Malcolm – having blame is not a good thing.
Wanting ‘more to come’ then, is also, not a good thing.
How is it possible that single court be the object of so much adverse press?
Clearly the casual observer has noticed that the Supreme Court is taking a lot of patent cases, and that the en banc court Federal Circuit strongly disagrees with each other on fundamental issues. Moreover, allowing one to patent anything and everything under the sun, even business methods, DNA, and human beings, has the public talking. If Congress were to do such things, or even the Supreme Court, the public would be aghast. But when the patent bar’s captured court does it…. Well, everyone notices.
Ned,
You are aware, are you not, that the Supreme Court itself has been hovering at record low approval ratings, right?
So quick to cast stones at the the CAFC, without understanding how the Higher Court is necessarily implicated…
The SC get a lot of flak when it makes controversial decisions that the majority of Americans flat out disagree with.
One thing Americans seem to agree on is that patenting business methods, DNA, human beings and genetically modified plants are all probably not a good idea. They may not understand that the Supreme Court is not behind this, as most Americans have probably never heard of the Federal Circuit as they have the 9th Circus Court of Appeals. Thus they shift the blame to the wrong target.
If the media were to shine the spotlight on the Culprit and perhaps on the judges most behind the patent mess we currently find ourselves in, the opprobrium might be properly directed.
How do you think the people will react when they learn of a court that specializes in patents, sitting in Washington, manned by patent attorneys, that was created at the behest of the APLA (Dunner) and the IPO (Newman), the leading organizations of the patent bar, and whose members are feted at big patent bar functions?
LOL – your “business methods” mantra is NOT reflective of the public’s view.
You are mistaking the KoolAid that you drink, and the rampant propaganda with the public’s views.
“They may not understand that the Supreme Court is not behind this”
This statement is not clear at all. It appears that you do not understand exactly what the Supreme Court is or is not behind. SInce you do not appear to understand this point, you would then lack the ability to understand the relationship between the Supreme Court anti-patent leanings and the animus from the public towards the Court. Thus, you miss the point of why the Court’s near record low public opinion is important (hint: it is NOT just because the Court may be making some other non-patent non-popular decisions).
The shifting of the blame to the wrong target is an action that you are guilty of.
“If the media”
LOL – open your eyes Ned – the media has LONG been a bastion of the Left and of the coastal-bias. Do you really think that a media shift towards the center supports your agenda? I tell you this straight up: the anti-patent leanings of the Court would exacerbate the negative views of the highest Court in the land. They would be seen as even more of a bunch of clueless and ivy-league tainted in-the-pocket and out of touch of average Americans then they are now – by a HUGE margin.
As to the CAFC, and your extremely lopsided painting of that group – just ask Alice. There is no capture as you paint it because the group you want to paint as captured as been instead torn asunder by the Group of Nine.
I will then remind you of the Constitution and of the ability of Congress to create such a group that you would denigrate – for the exact purpose that you would also denigrate.
No Ned – a closer and more critical examination of the state of patent law easily reveals that you are the anti-Constitutional brigade here. It is you that seeks to usurp the Constitutionally properly allocated authority and give that authority to an unaccountable Group of Nine.
OT regarding David Kappos’s recent comments.
The more I read, the more I feel like he was certainly not missed by those that brought him on board when he left. Maybe to the point of being encouraged to head on out.
link to law360.com
Certainly Kappos was a mistake and a step down from Dudas who, at least, was trying not to make things worse.
“and a step down from Dudas”
Can anyone’s credibility be more wrecked with a single phrase?
lol, owen, lol.
Can you clarify 6?
Do you think that Owen really feels that Kappos is a step down from Dudas?
Anon, I’m not sure if he was joking or not. Either way I found his comment funny.
…because admitting that you have no clue as to what someone means and then finding it funny shows just how much you care about what the person is saying… right?
You know, your lack of understanding and caring for what others mean should be looked at.
“because admitting that you have no clue as to what someone means and then finding it funny shows just how much you care about what the person is saying… right?”
You got the order of steps mixed up there brosef, first comes the finding it funny, then the “admission”.
Though it was not an admission that I “have no clue”. I have “a” clue. In fact, I had two “clues”, I just set them forth in the previous comment, he was either joking, or he was being serious about kappos being a step down. He either meant one or the other, those are my “two clues” that I had. Since the response was the same in either situation I did not care enough to nail down which he meant. Nor was there any need for me to nail it down in order to respond in a way that didn’t cause a huge inter-personal blow up. Note though how my response didn’t cause a huge social blow-up between me and Owen. There is no social obligation for me to care overmuch in that situation. I can readily ID such situations because I have this thing most normal people have a little bit of called “social skills” that people with psychopathy lack.
But I’m glad to see you attempting to understand the dynamics here anon. It’s a step forward.
Obviously, the mean (8) is more important than the average (24) given the extreme disparity between the judges at two ends of the spectrum.
Granted, this is hard to do — but I think a better number would be to base your analysis on number of cases that made it to a Markman hearing. Before Markman, there really isn’t a lot of nitty-gritty patent law issues for a judge to address.
Whether or not a judge “received” a patent case says little about whether the judge knew anything about patent law after the case was disposed. However, if a judge has conducted a Markman hearing, then they are forced to know something about patent law.
“Before Markman, there really isn’t a lot of nitty-gritty patent law issues for a judge to address.”
You mean, besides some of the nitty-gritty 101 issues…?
Agreed; I’ll think about a meaningful way to automate this search. Maybe searching for cases with “claim construction” in the docket might help in indicating which cases made it at least as far as some activity relating to that (but not necessarily as far as a claim construction hearing itself).
I think you may mean “median” as opposed to “mean.” “Mean” and “average” are synonyms.
A few minor nits with the methodology, but overall it looks like a robust approach.
I can think of a few nits myself, but in the interests of making it a readable blog post, I didn’t go into them. But if they are substantive nits that are likely to change the analysis, do mention them.
Just for jakes I would show a time chart of the number of suits divided by the number of active patents in the same time frame.
Or you can divide the number of patent suits by the world population. Super interesting stuff!
a great idea Malocolm.
Wait…
not.
On the other hand my idea is actually relevant to highlight the QQ factor that often happens with dust-kicking.
But you already knew that, right?
I don’t think you understood MM’s point.
I would be more impressed if you understood mine.
I mean, what a pointless post. GROW UP.
Yes, Hans, your post at 1.1.1.1.1.1 was rather pointless (as was Malcolm’s at 1.1.1.1).
Clearly patent litigation in context of how many active patents are available to be litigated is a meaningful indicator of just how much dust is being kicked up by any “Enforcing patent rights must be bad” propaganda, while patent litigation in a context of overall population is clearly ambiguous at best.
Feel free to actually address a substantive issue with your next post.
One thing that came to my mind was that knowing how many cases are found to be exceptional might be important. If a DJ has never seen an exceptional case before, they might not recognize one when they do see it. I know that’s somewhat begging the question, since the standard for “exceptional” is being taken to task here.
Comments are closed.