Professor Mark Lemley has released a draft of his new study on patent forum shopping titled "Where to File Your Patent Case." Professor Lemley suggests three primary factors that influence a patentees choice of forum: (1) likelihood of winning; (2) likelihood of getting to trial; and (3) speed of getting to trial. Professor Lemley used the Stanford IP Litigation Clearinghouse database to classify these factors for 25 most-active district courts. (http://ssrn.com/abstract=1597919).
Win Rate: "The variation in win rates ranges from a high of 55% in the Northern District of Texas to a low of 11.5% in the Northern District of Georgia." Interestingly, Lemley finds that "the Eastern District of Texas, while it has a higher than average plaintiff win rate, is not in the top five districts. And the districts that are in the top five (the Northern District of Texas, the Middle District of Florida, the District of Nevada, the District of Delaware, and the District of Oregon) are not normally thought of as plaintiff patent jurisdictions of choice. Indeed, accused infringers often choose the District of Delaware, filing declaratory judgment actions there. Conversely, patent plaintiffs often file suit in districts like the District of New Jersey that have a surprisingly low win rate."
Best Venues: When you add-in speed and likelihood of trial, Lemley argues that the best districts include the Middle District of Florida, District of Delaware, Eastern District of Virginia, and the Western District of Wisconsin. The best districts for accused infringers include Eastern District of Wisconsin, the Southern District of Ohio, or the District of Columbia because patent cases in those districts move slowly and more-frequently end with summary judgment in favor of the accused infringer.
Caveats: Prof Lemley hints at a few caveats to his study. Namely, the win-rate in the Eastern District of Texas might be lower than Delaware because of the cases filed there. I.e., patentees with low-quality patents might be more likely to flock to Texas rather than Delaware.
Read the Paper: http://ssrn.com/abstract=1597919
Note: The data provided here by Prof Lemley is similar to that used by patentees when deciding where to file and in arguing change-of-venue motions. It is unlikely that the parties are making ignorant choices. Rather, patentees are deliberately filing cases in the Eastern District of Texas despite these statistics. The next step in this analysis is to query why?
The heat-map above shows patent litigation filings for the past year and was provided by the Stanford IP Litigation Clearinghouse.