It has now been four months since the Supreme Court issued its decision in TC Heartland concerning the venue rules governing patent infringement cases. We have been carefully monitoring filing trends on our TC Heartland Resource Page since the decision issued, and our past reports can be found here and here. Below, we consider how TC Heartland has affected where patent cases have been filed over the past 120 days.
More than 1,000 new patent infringement suits have been filed since the TC Heartland decision.1 Notably, however, the overall number of filings over the last 120 days has measurably dropped when compared to the same time period in 2016. From May 22, 2017 (the date of TC Heartland decision) to September 19, 2017, there were 1,181 new patent cases compared to 1,401 cases during the same period in 2016 (a 15.7% decrease in filings). Also, the number of cases filed by “high-volume plaintiffs” has decreased, both in number and in proportion, from 714, or 50.1% of all cases filed from May to September 2016, to 332, or 31.2% of the cases filed from May to September 2017.2
Post-TC Heartland, the top ten districts by number of filings account for just over 75% of all patent cases filed. During the same period in 2016, those ten districts also accounted for a similar proportion of all patent cases. The relative share of new cases among the ten districts, however, has shifted dramatically, as reflected in the following chart:
Consistent with the trends we reported earlier in our three-month update (A Look at District Court Filing Trends Three Months after TC Heartland), the proportion of new patent infringement cases filed in the Eastern District of Texas has been reduced by more than half, from 39.61% in 2016 to 15.04% in 2017. Meanwhile, the District of Delaware has seen a dramatic rise in its share of new cases, from 12.06% to 27.91% during the same period. The data also shows plaintiffs shifting from filing in the Eastern District of Texas to other districts in the top ten. Eight of these ten districts have seen an uptick in filing, suggesting that the era of forum shopping in patent cases may be over.
A graph of the five busiest judges handling patent cases post-TC Heartland also shows increased diversity. Judge Gilstrap’s docket decreased substantially from 2015—when he had had over a third of all patent cases filed—to 2017, when his proportion dropped to 11.11%. Judge Schroeder’s docket also shrank as a proportion of all cases filed, from 13.28% in 2016 to just 3.14% in 2017. Meanwhile, three judges in the District of Delaware have all seen a doubling in their share of patent cases filed between 2016 and 2017. Also, the combined proportional share of all patent cases filed in these five judges’ dockets has decreased from 60% in 2015 to 34% post-TC Heartland.
In sum, after 120 days, the data continues to show that patent plaintiffs are no longer flocking to the Eastern District of Texas to file new patent infringement cases, and are instead pivoting to the District of Delaware and the Northern District of California. Other popular districts, such as the Central District of California and the District of New Jersey, have also seen upticks in their proportion of cases filed. We can expect these trends to continue, as patent owners diversify from filing in the Eastern District of Texas and choose new fora for suit.