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Friday, November 2, 2007

Statistics Don't Support Dennis Crouch's Conclusion That Patent Litigation in EDTX is "Waning"

Dennis Crouch reports that patent filings in the Eastern District of Texas are, or soon will be, waning.

I strongly disagree. First, the statistics that Dennis reports are strongly to the contrary. He notes that almost one in six patent cases in the US filed in the last two months were filed in Eastern Texas. In fact, the number of cases filed in 2007 in EDTX has already shattered all previous records. As I will soon report, there have been 309 patent cases filed in EDTX this year already, through 304 days. CDCA is a distant second.*

Second, and more importantly, like most others, Crouch ignores the real statistic that needs to be looked at: the number of defendants sued. Although my stats for October are still preliminary due to CDCA not being finalized yet, here is how the top 7 compare in terms of number of defendants sued in each district in the past 3 months:

EDTX 371
CDCA 270 (and if you subtract out the 1 massive troll case with 111 defendants filed in October, then you get 159)
DNJ 126
DDE 72

I don't think one can make the statement that EDTX is waning when as many defendants have been sued there in the last 3 months as in San Francisco, New York, New Jersey, Chicago, and Delaware combined.

Crouch's other points: a recent products liability decision spells doom for cases in EDTX because they'll all be transfered out. Right. Somehow, I don't believe that will happen. For example, Judge Folsom (or was it Craven?) recently refused to transfer an Acacia case (Disc Link) out of Texas, because everyone has a right to a speedy jurisdiction - that was a big part of the rationale. The day patent cases start being transferred out regularly on 1404/venue reasons is the day people will stop filing there. That's why the Western District of Wisconsin hasn't caught on, despite their one-year-to-trial record. The Texas judges know that, which is why they don't transfer out cases regularly on 1404/venue. To be sure, the opinions are centered on the right of the plaintiff to file where they can get the speediest resolution, etc. Someone will someday take a denial of a motion to transfer up to the Federal Circuit on mandamus in light of the recent Fifth Circuit opinion in In re Volkswagen II. Until then, I am skeptical that patent cases will be transferred anywhere.

Another point: Judge Clark granted JMOL in TGIP. Yes, that happened. But let me point out that people are drawn because of the jury success rates. A $156M verdict, overturned or not, is still a big deal, and the Clark JMOL may keep people away from Beaumont, but it won't keep them from Marshall or Tyler. Michael Smith's statistics and Dennis Crouch's conclusions notwithstanding, the only thing that's going to stop the freight train that is East Texas is going to be Congress.

*(Note: I don't count the transferred Katz MDL cases as 45 separate CDCA cases, as others do. That's one multidistrict case transferred to CDCA. Most of those Katz cases were filed in EDTX or elsewhere first, and will go back there for trial. With Katz cases, EDTX is still #1, but only by 30 or so rather than by around 75).