It has now been more than six 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 Center since the decision issued, and our past reports can be found here, here and here. Below, we consider how TC Heartland has affected where patent cases have been filed over the past six months.
More than 2,000 new patent infringement suits have been filed since the TC Heartland decision.1 Notably, the overall number of filings over the last six months has dropped when compared to the same time period in 2016. From May 22, 2017 (the date of TC Heartland decision) to November 22, 2017, there were 2,127 new patent cases compared to 2,347 cases during the same period in 2016 (a 9.4% decrease in filings). The number of new filings over the past two months, however, has been roughly flat when compared to the same period in 2016. This may suggest that the decrease in new filings in the immediate aftermath of TC Heartland was only a temporary trend.
Notably, since TC Heartland, the number of cases filed by “high-volume plaintiffs” has decreased, both in number and in proportion, from 1,036, or 44.1% of all cases filed from May to November 2016, to 659, or 30.1% of the cases filed from May to November 2017.2 These figures suggest that TC Heartland has likely resulted in reducing (at least in the short term) the amount of litigation commenced by nonpracticing entities.
Post-TC Heartland, the top ten districts by number of filings account for almost 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 updates at three months (here) and four months (here), the proportion of new patent infringement cases filed in the Eastern District of Texas has been reduced by almost two thirds, from 37.71% in May through November 2016 to 13.96% during the same period in 2017. Meanwhile, the District of Delaware has seen a dramatic rise in its share of new cases, from 11.41% to 24.09% 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 TC Heartland will result in a (somewhat) more even distribution of patent cases across the district courts (or at least a much smaller portion of cases in the Eastern District of Texas).
A graph of the five busiest judges handling patent cases post-TC Heartland also shows increased diversity. Judge Gilstrap’s docket decreased substantially from May through November 2015—when he had had almost a third of all patent cases filed (30.79%)—to May through November 2017, when his proportion dropped to 9.21%. Judge Schroeder’s docket also shrank as a proportion of all cases filed over the same periods, from 12.79% in 2015 to just 3.52% in 2017. Meanwhile, three judges in the District of Delaware have all seen nearly 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 52% in 2015 to 31% post-TC Heartland.
In sum, after six months, the data continues to show a drop off in cases filed in the Eastern District of Texas and a 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.