In the wake of the Supreme Court’s holding in TC Heartland, many expect that the number of new cases filed in the Eastern District of Texas – the most popular venue for patent cases in recent years – will decline. At the same time, commentators have hypothesized that new filings will increase in the District of Delaware, where many corporations are incorporated, and the Northern District of California, where many technology companies are headquartered. In the month following TC Heartland, these predictions have been borne out, at least in part. Compared to the same period in previous years, the Eastern District of Texas has had a marked decline in new patent infringement cases, both in terms of the number and percentage share of new filings. However, it is too early to say whether there has been a substantial shift of new filings to the District of Delaware and the Northern District of California.

From May 22 through June 30 of this year, only 61 new patent infringement cases were filed in the Eastern District of Texas.1 In contrast, over the same six-week period last year, the Eastern District of Texas saw 193 new cases filed. An analysis of filing trends in the Eastern District for the same time period dating back to 2012 reveals that the number of new filings in 2017 was 39% lower than the next lowest year (2014). 

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A closer look at the share percentage of new filings in the Eastern District of Texas is more revealing. During the six-week period since the TC Heartland decision was issued, new patent filing dropped to 7% of all filings, compared to 21% in 2016 and 40% in 2015 for the same time period. This notable decline in share percentage of year-over-year new filings suggests plaintiffs are hesitant to file new cases in the Eastern District of Texas. 

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However, the question of whether TC Heartland has encouraged plaintiffs to file in particular other courts is less clear. While, there has been an uptick in 2017 relative to the same period of 2016, the number of new cases filed in the District of Delaware is well within the quantity of cases that court has historically seen. Similarly, the share percentage of new cases this year is higher than in the previous two years, but still within the range seen in years prior to 2015. At this time, no strong indicator exists to suggest that patent owners are flocking to Delaware to file cases where defendants are incorporated.

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The Northern District of California has seen a marked, but modest increase in the number of filings compared to previous years. The share percentage has also increased year-over-year. But, the Northern District has historically seen so few new cases filed during the period that even a slight change in the quantity of new cases may have an outsized impact on these results. As such, more data is needed to determine whether there is an actual trend toward increased filings in the Northern District of California. 

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In sum, while there is evidence that new filings in the Eastern District of Texas have declined since TC Heartland, it is not clear yet that plaintiffs are instead flocking to the District of Delaware and Northern District of California. We will continue to track these trends as patent owners refine their post-TC Heartland litigation filing strategy.