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A favorable Markman claim construction can raise the pressure, and, when combined with a substantial risk, either in dollars or an injunction, defendants will feel the pressure to have as much control as possible over the outcome. This may be especially attractive to non-practicing entities that do not have the fear of a retaliatory counterclaim for infringement.

Forum Shopping for Patent Litigation
Anthony S. Volpe
The Legal Intelligencer
03-31-2011

Patent infringement plaintiffs have the choice of filing a complaint under 28 U.S.C. ยง 1400(b) in any jurisdiction where the defendant's products are sold or being used. That seemingly simple-sounding choice can become quite complex and may have a real impact on the length and expense of the litigation. It is not uncommon for plaintiffs and defendants to jockey for the most favorable jurisdiction. This article attempts to summarize the data from a recent Stanford Intellectual Property Litigation Clearinghouse article and provide some pointers on how to determine the best forum for your client's patent suit. In order to contextualize the analysis, it is important to remember that things can be very different depending on which side of the courtroom you find yourself.
First, as expected, both sides want to win. So it is critical to review for the current data to determine if a particular jurisdiction or judge is typically pro-plaintiff or pro-defendant. Second, patentee-plaintiffs generally have an incentive to get to trial when they have managed to get to a pro-patent venue. Not surprisingly, accused infringers generally prefer to delay a resolution and tend to file a lot of motions. There exist historical data to support the notion that most pretrial motion rulings favor defendants and juries have a tendency to favor the patentee-plaintiff. (See John R. Allison and Mark A. Lemley's 1998 article in the AIPLA Quarterly Journal, "Empirical Evidence on the Validity of Litigated Patents," finding that plaintiffs win 67 percent of jury verdicts on the issue of validity but comparably only 28 percent of pretrial motions.)
Although the historical data may support a given side, there is also the issue of time to trial. As a third consideration, patentee-plaintiffs probably should look for the fastest jurisdiction.
Generally the decision to litigate stems from the fact that the patentee-plaintiff is presently losing market share or is facing price erosion. So a long and expensive litigation process is an unattractive but necessary option. The infringer-defendant favors a slower court in the hope of having ample time to design around the patent, and possibly book end the damages so that the patentee-plaintiff looks to settle below the costs of chasing a questionable damages award. Furthermore, an award for an exceptional case is also not a given and, if awarded, may not match the real cost of the litigation. So what do the latest numbers tell us?
From the beginning of 2000 to March 17, 2010, there were about 22,000 patent cases resolved at the federal district court level. Of those cases, most (75.5 percent) have settled. Of the approximately 15 percent that went to trial, plaintiffs won about 32.5 percent (989 out of 3,043).
As might be suspected, there is substantial variation in outcome among the district courts. For example, in the Middle District of Georgia the plaintiff's win percentage is 100 percent and in the District of Wyoming the same party's percentage is 0 percent. Despite this seemingly clear gap between the percentages, the small number of patent cases filed in these jurisdictions makes it very difficult to predict the outcome of a lawsuit. It is also tricky to determine how many cases settle when a company finds itself on the wrong side of the statistics. Among the districts having at least 25 outcomes, the 10 with the highest plaintiff victory percentages (and actual case numbers) follow:
1. Northern District of Texas -- Highest plaintiff victory percentage with 55.1 percent (27/49).
2. Middle District of Florida -- 46.3 percent (25/54).
3. District of Nevada -- 46.2 percent (24/52).
4. District of Delaware -- 45.3 percent (62/137).
5. District of Oregon -- 45.2 percent (19/42).
6. Eastern District of Texas -- 40.3 percent (52/129).
7. Eastern District of Missouri -- 40.0 percent (16/40).
8. District of Massachusetts -- 38.4 percent.
9. Southern District of New York -- 37.0 percent (51/138).
10. Central District of California -- 36.3 percent (125/344).
The numbers for the Texas districts fall in line with the current belief that they are patentee-plaintiff friendly!
When reviewing these statistics to divine the best forum available, you need to keep the previously mentioned considerations in mind. Ultimately, the win rate for any given action in any of these districts is likely to turn on the viability of the plaintiff's cause of action. Stated in another way, these statistics are likely to be meaningless to plaintiffs bringing questionable cases in the jurisdiction solely because it is viewed as plaintiff-friendly.
As stated earlier, a very small percentage of all patent lawsuits filed actually make it to trial, and therefore plaintiffs must take into account which jurisdiction they are most likely to survive a pretrial motion. Out of the districts with 25 or more outcomes, the 10 with the highest "to trial" percentages (and actual case numbers) follow:
1. District of Delaware -- highest percentage to trial at 11.8 percent (120/1017).
2. Eastern District of Texas -- 8.0 percent (82/1024).
3. Western District of Wisconsin -- 7.4 percent (19/256).
4. Eastern District of Virginia -- 6.4 percent (24/373).
5. District of Massachusetts -- 6.2 percent (36/584).
6. South District of Florida -- 4.4 percent (21/478).
7. Eastern District of Missouri -- 4.1 percent (12/291).
8. Western District of Texas and Middle District of Florida -- tied with 4.0 percent (8/200 and 17/429 respectively).
9. South District of Texas -- 3.5 percent (12/343).
10. District of Oregon -- 3.2 percent (8/251).
This divides into an upper rank of three districts, a middle rank of two, and a lower rank of five that are closely grouped. One real statistic to come out of this information is the huge number of cases that do not go to trial. Another statistic to consider is whether the number of filings in those districts is the result of going to trial or the plaintiff's desire to have a jurisdiction that goes to trial as a sword to hold over the head of a defendant.
When you consider that: (a) less than 3 percent of the patent cases actually go to trial; (b) a plaintiff has a substantially greater chance of getting in front of a jury in the top five jurisdictions; and (c) a plaintiff has a 67 percent chance of winning once it gets to trial in these jurisdictions, they have a great deal of appeal to a plaintiff interested in a settlement. A favorable Markman claim construction can raise the pressure, and, when combined with a substantial risk, either in dollars or an injunction, defendants will feel the pressure to have as much control as possible over the outcome. This may be especially attractive to non-practicing entities that do not have the fear of a retaliatory counterclaim for infringement.
The above considerations may be tempered by the plaintiff's desire for a quick resolution of the matter. A party seeking to minimize the time between the complaint filing and an ultimate disposition may opt for those district courts that have "rocket dockets." The Western District of Wisconsin and the Eastern District of Virginia are respectively the two fastest, on average resolving cases in just over six months. Surprisingly, the Eastern District of Texas and the Northern District of California are among the slowest jurisdictions. This is likely due to the popularity of these jurisdictions in recent years and the resulting congestion on the court's docket. (See Alisha Kay Taylor's 2007 article in the John Marshall Review of Intellectual Property Law, "What Does Forum Shopping in the Eastern District of Texas Mean for Patent Reform?")
The Southern and Middle Districts of Florida and the District of Colorado all have average disposition times of roughly nine months. However, the difference among the districts having more than 25 outcomes is not dramatic, as most of them take approximately a year to resolve a patent lawsuit.
Choosing a forum for patent litigation involves a multitude of additional factors such as travel distance, availability of process on witnesses needed for trial, and for multinationals the need for discovery outside the United States. All districts are likely to have tradeoffs; however, aggregating all of the data in the Stanford article should help you focus on the ideal jurisdiction for your particular suit.
Surprisingly, the best plaintiff's district court may be the Middle District of Florida. In every measurement, the Middle District of Florida ranks within the top 10 of the jurisdictions with 25 or more outcomes. The rest of the top five should be a little less surprising: the Eastern District of Virginia, the District of Delaware, the Southern District of Florida, and the Western District of Wisconsin.
On the other side of the aisle, the most favorable defendant jurisdictions are the Eastern District of Wisconsin, the Southern District of Ohio, the District of Columbia, the Eastern District of New York, and the Eastern District of Pennsylvania. These aggregate computations can, nonetheless, be very imprecise measurements. For example, the Western District of Wisconsin was ranked among the top five aggregate plaintiff's jurisdictions; however, it is near the bottom in terms of plaintiff win rate.
In conclusion, the Stanford article provides a lot of interesting information, but it may also result in conflicting outcomes on the choice of forum. As always, you need to consider many variables that are unique to your specific case and the desired result and any constraints on the client's litigation funds.
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