Delaware Is the Hot Venue for Patent Litigation
This article originally appeared in the National Law Journal, an affiliate of the Litigation Daily.
Patent case filings in Delaware federal court have spiked this year—1,015 as of September 10, compared with 995 in all of 2012, according to analysis released Monday by Perkins Coie patent litigation partner James Pistorino.
If filings continue apace for the rest of the year, that court would see a 50 percent spike in patent case filings, Pistorino said.
Already, more patent cases have been filed in Delaware this year than in a traditionally plaintiff-friendly stronghold, the Eastern District of Texas. Pistorino counted 920 cases in that Texas court so far, compared with 1,266 in 2012.
Practitioners had been noting an apparent boost in Delaware filings, so he thought it would be helpful to get hard numbers out now, he said.
“What the numbers basically show is not that there’s been a fall-off in the Eastern District of Texas—it’s still as popular as it was in 2012. The numbers show there’s been an increase in Delaware,” he said.
Pistorino handles patent, trademark, copyright and trade-secrets litigation before the district courts and the U.S. Court of Appeals for the Federal Circuit on behalf of software, biotechnology and manufacturing companies.
He pointed to a number of factors attracting litigants to Delaware: judges’ reluctance to transfer cases; the relatively small number of judges, who take similar views of case management; and the court’s disinclination to take up summary judgment motions early.
On the transfer issue, Delaware judges don’t tend to view the location of the parties’ witnesses, the defendant’s employees or the plaintiff’s employees as relevant to where the case should be, he said.
“Once that’s part of your analysis, then I think you’re going to get a certain result of hardly any cases would be subject to transfer, and that’s basically where we are,” Pistorino said.
According to his data, patent case filings are on track to rise by 10 percent nationwide. As of September 10, he counted 4,252 total cases compared with 5,584 in 2012.
Cases in other hot districts include 258 in the Central District of California this year compared with 514 during all of last year; 166 in the Northern District of California compared with 260 last year; and 159 in the Southern District of Florida compared with 151 during 2012.
Erik Belt, an intellectual property partner in the Boston office of McCarter & English, offered several other reasons why the Delaware courts are becoming more popular. Perceived speed because of case overloads in the Eastern District of Texas is one. Another is that one can usually secure jurisdiction over potential defendants because so many companies are incorporated in Delaware. A third is that Delaware judges’ extensive experienced with complex cases and the court’s procedural rules.
“I can see why some of the cases that were filed in Texas are now being filed in Delaware,” Belt said.