It has now been three months since the Supreme Court issued its decision in TC Heartland limiting the venue rules governing patent infringement cases. We have been carefully monitoring new case filing trends in the wake of the TC Heartland decision, as visitors to our TC Heartland Resource Page know. Below, we look at how TC Heartland has so far affected where cases are filed.

More than 1,700 new patent infringement suits have been filed since the TC Heartland decision. Consistent with the trends we reported in our one-month update (One Month Since TC Heartland – A Look at Patent Infringement Filing Trends in the District Courts), the number of new patent infringement cases filed in the Eastern District of Texas continues to decline significantly. At the same time, the number of new patent infringement cases filed in the District of Delaware, where many companies are incorporated, and the Northern District of California, where many high-tech companies are headquartered, has increased.

From May 22nd, the date the TC Heartland decision issued, through August 18th of this year, the Eastern District of Texas saw 126 new patent infringement cases filed. 1 By comparison, 460 new cases were filed during the same three-month period in 2016, nearly four times more than this year. New filings in the Eastern District are at their lowest point in the past five years, with a precipitous 47.5% drop from the previous low of 240 cases over the same period in 2014.

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For the three-month period post-TC Heartland, the Eastern District of Texas accounted for 7% of all new patent infringement filings. As such, the Eastern District’s share of new cases filed from May to August 2017 (7%) is five times less than the district’s share of new cases filed from May to August 2015 (35.68%), and roughly half the district’s share from May to August 2014 (13.27%). Although Judge Gilstrap has outlined a flexible “regular and established place of business” test that seemingly makes it easier for plaintiffs to establish venue in the Eastern District of Texas, plaintiffs are avoiding the Eastern District of Texas in favor of other forums where venue can more clearly be established, thereby avoiding additional motion practice, for instance.2 

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The number of cases filed in the District of Delaware in 2017, on the other hand, has increased over 2016 and 2015. In particular, the 254 new cases from May to August 2017 represents a 72% and 119% increase over the same time periods in 2016 and 2015 respectively. While that is a significant increase, the District of Delaware has not yet matched its historic level of 370 new cases filed from May to August 2013. The percentage of new cases filed in Delaware from May to August 2017 (14.24%) is consistent with the jurisdiction’s percentage of new cases in 2012 (15.5%), 2013 (21.55%), and 2014 (12.61%). As such, while it is arguable that patent owners are increasingly filing suit in the District of Delaware, it also appears that new cases are not more widely dispersed than they were from 2012 to 2016.  

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The Northern District of California has also seen an increase in the raw number and share of new patent cases since the TC Heartland decision. From May to August 2017, there were 77 new cases filed in that district, a 16.7% increase from the previous high of 66 cases in 2012. The share of new cases in the Northern District from May to August 2017 (4.32%) is also higher than the same periods in 2016 (1.84%), 2015 (2.09%), 2014 (3.60%), and 2013 (3.32%). 

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In sum, after one quarter, the data tends to indicate that patent owners are no longer flocking to the Eastern District of Texas to file new patent infringement cases, but are pivoting to the District of Delaware and the Northern District of California. Perhaps the most notable statistic, however, is that over 74% of new patent infringement cases were filed in district courts other than the Eastern District of Texas, the District of Delaware, and the Northern District of California. This is the largest share that the other courts have ever received, and may signify that the era of favored venues – i.e., forum shopping – has ended for patent infringement cases.