"Expectations for litigation
In the next decade--absent legislation or other dramatic reform--expect to see at least another twofold increase in patent litigation in the industry. We will see the same steady rate of enforcer litigation by large semiconductor companies. There will continue to be aggressive enforcement by smaller chip companies, as well as many more lawsuits by outside patent owners/nonrivals seeking to cash in on licensing fees. Such lawsuits may come as a result of the greater ease with which an accused infringer can now file suit for declaratory judgment, per the Supreme Court's MedImmune Inc. v. Genentech Inc., 127 S. Ct. 764 (2007). Or they may come as preemptive filings, i.e., as a result of the patentee affirmatively seeking to sue first in its chosen forum, and then initiating contact with the accused infringer to negotiate a license. Moreover, an accused infringer may be more willing to sue for declaratory judgment of invalidity in light of the Supreme Court's KSR International Co. v. Teleflex Inc., 127 S. Ct. 1727 (2007), which may make it easier to prove obviousness, and in light of eBay, which makes it much more difficult for a nonrival to obtain an injunction. Due to the latter reason alone, expect to see more ITC investigations as these quick proceedings offer an exclusion order as the primary remedy.

Assuming the litigation takes place in federal district court, the Ninth Circuit should continue to be the primary go-to circuit, with its Northern District Court and Central District Court seeing the most action. The Eastern District of Texas should continue to be a favored forum for patentees. However, this forum's shine should diminish somewhat as trial dates are being pushed farther into the future due to backlogs, coupled with the knowledge that at least some defendants are coming away victorious, as evidenced by recent summary judgment motions in favor of the accused infringer and jury findings of invalidity. Indeed, at trial, the patentee's win rate for 2007 is 33 percent. More suits are also expected to be filed in the increasingly popular, speedy Western District of Wisconsin. The Northern District of Texas, Northern District of Georgia and Western District of Pennsylvania, each of which has now enacted local patent rules, should also see increased filings."