Streetspace, Inc v. Google, Inc. et al
Filing
41
REPLY to Response to Motion re 23 Joint MOTION for Change Venue filed by Apple, Inc., Jumptap, Inc, Millennial Media, Inc, Navteq Corporation, Nokia Corporation, Nokia Inc, Quattro Wireless, Inc. (Attachments: # 1 Declaration Anne E. Huffsmith in Support, # 2 Exhibit D to the Declaration of Anne E. Huffsmith, # 3 Proof of Service)(Simmons, Luann) (lmt).
DECLARATION OF ANNE E. HUFFSMITH
IN SUPPORT OF REPLY
IN SUPPORT OF
MOTION TO TRANSFER VENUE TO THE
NORTHERN DISTRICT OF CALIFORNIA
TABLE OF CONTENTS TO EXHIBIT
Exhibit
D
Page Numbers
1 - 37
DECLARATION OF ANNE E. HUFFSMITH
IN SUPPORT OF REPLY IN SUPPORT OF
MOTION TO TRANSFER VENUE TO THE
NORTHERN DISTRICT OF CALIFORNIA
EXHIBT D
AIPLA QUARTERLY JOURNAL
Volume 38, Number 4
Page 1
Fall 2010
WHERE TO FILE YOUR PATENT CASE
Mark A. Lemley *
Abstract
Forum shopping is a feature of modern patent law. Both plaintiffs and
defendants do it. But they have traditionally done it on the basis of anecdote and
personal experience, not on the basis of actual data. In this paper, I evaluate the records
of the thirty-three most active patent district courts, considering plaintiff win rate, the
likelihood of getting to trial, and the speed of the forum. The result is a surprising
answer to the question “Where should I file my patent case?”
LIST OF TABLES
1.
2.
Table 1.
Table 2.
3.
4.
Table 3.
Table 4.
5.
Table 5.
6.
7.
8.
Table 6.
Table 7.
Table 8.
9.
Table 9.
District Court Outcomes 2000-2010 .............................................. 4
Number of Patent Cases Litigated in Districts with 25 or More
Outcomes ......................................................................................... 5
Patentee Win Rate in Districts with 25 or More Outcomes ....... 7
Percentage of Patent Cases that Result in Trial in Districts
with 25 or More Outcomes .......................................................... 11
Districts with 25 or More Outcomes, Sorted by Time to
Resolution ...................................................................................... 14
Districts with 25 or More Outcomes, Sorted by Time to Trial 16
Aggregate Ranking of Districts................................................... 18
Outcome-Emphasis Ranking of Districts with 25 or More
Outcomes ....................................................................................... 21
Trial-Emphasis Ranking of Districts with 25 or More
Outcomes ....................................................................................... 23
* © 2010 Mark A. Lemley. William H. Neukom Professor, Stanford Law School; partner,
Durie Tangri LLP, San Francisco, California. This paper could not have been written
without the Stanford IP Litigation Clearinghouse (IPLC), available at lexmachina.com,
and I thank both the tireless workers there and the many companies that have sponsored
the IPLC. Thanks also to Daralyn Durie, Rose Hagan, David McCombs, Clem Roberts,
and Bill Rooklidge for comments on a prior draft.
EX D to the Declaration to the Declaration of Anne E. Huffsmith in Support of Reply in Support of Motion to Transfer Venue Page 1 of 37
Electronic copy available at: http://ssrn.com/abstract=1597919
2
10.
11.
AIPLA Q.J.
Vol. 38:4
Table 10. Speed-Emphasis Ranking of Districts with 25 or More
Outcomes ....................................................................................... 25
Table 11. Appendix A: Patent Litigation Outcomes by Court ................ 28
EX D to the Declaration to the Declaration of Anne E. Huffsmith in Support of Reply in Support of Motion to Transfer Venue Page 2 of 37
Electronic copy available at: http://ssrn.com/abstract=1597919
2010
Where to File Your Patent Case
3
Forum shopping is alive and well in patent law. The patent venue
statute allows plaintiffs to file suit anywhere in the country where the
defendant’s product is sold or used. 1 Despite the existence of a unified court of
appeals that hears virtually all patent cases, 2 patent plaintiffs—and those who
might become patent defendants—spend a great deal of time and effort worrying
about where to file their case. 3 Meanwhile, accused infringers play much the
same game, looking for defense-favorable jurisdictions in which to file
declaratory judgment actions. 4 The result in many cases is a race to the
courthouse. The Federal Circuit has acted recently to rein in the worst abuses, 5
but forum shopping shows no signs of disappearing.
When selecting a forum, patent owners generally look for a few specific
characteristics. First, of course, they want to win. Therefore, the fact that a court
is considered pro-patentee is, not surprisingly, a strong reason to file suit there.
Second, at a minimum, patent plaintiffs want to get to trial. They know that
most summary judgment rulings favor defendants in patent cases, but that juries
1
28 U.S.C. § 1400(b) (2006) (“Any civil action . . . may be brought . . . where
the defendant has committed acts of infringement and has a regular and
established place of business.”).
2
See 28 U.S.C. §§ 1295(a)(1), 1338(a) (2006).
3
Among the academic discussions of patent forum shopping and costs of
patent litigation, see Samson Vermont, The Economics of Patent Litigation, in
FROM IDEAS TO ASSETS: INVESTING WISELY IN INTELLECTUAL
PROPERTY 327, 327-71 (Bruce Berman ed., John Wiley & Sons, Inc. 2002);
Mark Chandler, The Patent System’s Relationship to Digital Entrepreneurship,
112 W. VA. L. REV. 199, 203; Kimberly A. Moore, Forum Shopping in Patent
Cases: Does Geographic Choice Affect Innovation?, 79 N.C. L. REV. 889, 928
(2001). Carter Phillips calls forum shopping a “serious problem” in patent
litigation. Carter G. Phillips, Lewis F. Powell, Jr. Distinguished Lecture
Series, 66 WASH. & LEE L. REV. 1467, 1472 (2009).
4
It can be a substantial advantage to sue first as an accused infringer.
Kimberly Moore’s study found that patentees won 68% of jury trials when
they were the plaintiff but only 38% when they were the defendant in a
declaratory judgment action. Kimberly A. Moore, Judges, Juries, and Patent
Cases—An Empirical Peek Inside the Black Box, 99 MICH. L. REV. 365, 368 (2000).
5
See In re Genentech, Inc., 566 F.3d 1338, 1348, 91 U.S.P.Q.2d (BNA) 1027, 1035
(Fed. Cir. 2009); In re Hoffmann-La Roche Inc., 587 F.3d 1333, 1336-37, 92
U.S.P.Q.2d (BNA) 1861, 1862-63 (Fed. Cir. 2009); In re TS Tech USA Corp.,
551 F.3d 1315, 1320-21, 89 U.S.P.Q.2d (BNA) 1567, 1569-70 (Fed. Cir. 2008).
EX D to the Declaration to the Declaration of Anne E. Huffsmith in Support of Reply in Support of Motion to Transfer Venue Page 3 of 37
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4
AIPLA Q.J.
Vol. 38:4
tend to be far more pro-patentee. 6 As a result, a jurisdiction that grants many
summary judgment motions is likely to be a defense jurisdiction, while a court
that allows many matters to go to trial is likely to end up favoring the patentee.
Third, patent plaintiffs generally want speed. Because a patent usually expires
after twenty years, 7 it is a wasting asset; every year waiting to enforce the right in
court is a year that a patentee doesn’t have exclusivity in the market. For
plaintiffs only interested in damages, delay is somewhat less of a problem,
because the damages will ultimately compensate for the defendant’s use during
the court proceeding and the courts routinely award prejudgment interest.
Nonetheless, time spent waiting for a court resolution is time that cannot be
spent using the proceeds of the first suit to sue others. Further, while plaintiffs
wait for a court resolution, defendants can design around the patentee’s
invention, and delay may also bring market changes that render the patented
invention less valuable. 8
Defendants, in turn, generally want the opposite of what plaintiffs want.
A defendant’s ideal jurisdiction is one that regularly rules for defendants, is
unlikely to send cases to jury trial, and takes a long time to do both. The
incentives aren’t always perfectly misaligned—for example, a small defendant
with limited resources may be happy in a jurisdiction that resolves cases
quickly—but in general what plaintiffs want and what defendants want are
opposites.
Until recently, there was no good source of information about the
characteristics of the different district courts. Instead, lawyers tended to rely on
a combination of anecdote and their own experiences with a jurisdiction when
6
See, e.g., John R. Allison & Mark A. Lemley, Empirical Evidence on the Validity
of Litigated Patents, 26 AIPLA Q.J. 185, 212-13 (1998) (finding that patentees
win 67% of jury verdicts on validity but only 28% of pretrial motions).
7
See 35 U.S.C. § 154(a)(2) (2006) (providing patents with a twenty year term of
exclusivity); 35 U.S.C. § 156(c) (2006) (allowing extension of term of
exclusivity equal to the regulatory review period to which the product is
subject, in certain circumstances); 35 U.S.C. § 154(b) (providing a number of
extensions of patent term).
8
At the same time, delay can increase the cost of litigation and, especially if
the plaintiff’s lawyer is on contingency, that cost may be borne by the
defendant. See, e.g., Steven J. Elleman, Problems in Patent Litigation:
Mandatory Mediation May Provide Settlements and Solutions, 12 Ohio St. J. on
Disp. Resol. 759, 762-63 (1997). As a result, some plaintiffs do not
particularly care about speed.
EX D to the Declaration to the Declaration of Anne E. Huffsmith in Support of Reply in Support of Motion to Transfer Venue Page 4 of 37
2010
5
Where to File Your Patent Case
deciding where to file a patent case. This led to a herd mentality, in which patent
plaintiffs flock en masse to a particular jurisdiction perceived as favorable—the
Eastern District of Virginia a decade ago; 9 the Eastern District of Texas in the last
several years. 10 Speculation abounds about the next hot forum for patent
litigation—the Western District of Wisconsin? The Southern District of Florida?
In each instance, assessing the likelihood of winning, or even the likelihood of
trial in a patent case, was difficult, so plaintiffs focused primarily on what they
could observe: how fast a court’s docket moves.
The development of the Stanford Intellectual Property Litigation
Clearinghouse (“IPLC”) allows for a more systematic approach. The IPLC 11 is a
comprehensive set of data on every patent lawsuit filed since 2000—more than
25,000 suits in all. In this Article, I survey the outcome data of all 21,667 cases in
the IPLC database that were resolved at the district court level by March 17, 2010.
The results are presented in Table 1:
Claim
Defendant
Win
Procedural
Indeterminate
Likely
Settlement
989
2,054
2,223
37
14,542
1,822
Plaintiff Win
Rate
Claimant Win
21,667
Consent
Judgment
TOTAL
OUTCOMES
Table 1: District Court Outcomes 2000-2010
32.5%
Not surprisingly, most patent cases (75.5%) settle. When cases do go to
judgment, and almost 15% do, patentees win 989 out of 3,043, or 32.5%. 12
9
See George F. Pappas & Robert G. Sterne, Patent Litigation in the Eastern
District of Virginia, 35 IDEA 361, 363 (1995).
10
See Yan Leychkis, Of Fire Ants and Claim Construction: An Empirical Study of
the Meteoric Rise of the Eastern District of Texas as a Preeminent Forum for Patent
Litigation, 9 YALE J.L. & TECH. 193, 204 (2007).
11
Available without charge at http://www.lexmachina.org for academic,
government, and non-profit users, and by subscription for commercial users
at http://www.lexmachina.com.
12
This does not include consent judgments; adding those would increase the
number substantially. But consent judgments are really settlements, not
rulings on the merits.
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AIPLA Q.J.
Vol. 38:4
The overall percentage (32.5%) of patentees who win, however, conceals
substantial variation in outcome by district. There are jurisdictions where the
patentee win rate is 100% (the Middle District of Georgia, for example), and
jurisdictions where it is 0% (the District of Wyoming). But these are outliers in
districts where small numbers of cases are filed; one can’t predict very much
about the District of Wyoming by knowing that the only patent case ever
resolved there on the merits in the last decade went for the defense. As a result, I
limit my analysis to districts that resolved twenty-five or more cases on the
merits in the last decade. 13 There are thirty-three such districts. In Table 2, I list
these districts in decreasing order by the number of patent cases litigated there in
the last decade.
Claim
Defendant Win
Procedural
Indeterminate
Likely
Settlement
Consent
Judgment
TOTAL
Central District
of California
125
219
193
11
1401
340
2289
Northern
District of
California
Northern
District of
Illinois
Eastern District
of Texas
Southern
District of New
York
District of
Delaware
District of New
Jersey
District of
Minnesota
District of
Massachusetts
56
159
131
0
1007
71
1424
47
97
119
3
874
93
1233
52
77
150
0
703
42
1024
51
87
87
1
676
116
1018
62
75
137
0
682
61
1017
29
109
201
0
588
60
987
25
54
28
0
450
43
600
43
69
41
1
392
38
584
District
Claimant Win
Table 2: Number of Patent Cases Litigated in Districts with 25 or More Outcomes
13
A full list of cases for every district is attached as Appendix A.
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2010
7
Where to File Your Patent Case
Southern
District of
California
Eastern District
of Michigan
Southern
District of
Florida
Eastern District
of Pennsylvania
Northern
District of
Georgia
Middle District
of Florida
21
56
24
1
380
37
519
18
54
34
0
378
30
514
25
65
71
1
282
34
478
15
40
42
3
342
33
475
7
54
69
1
265
61
457
25
29
49
2
277
47
429
Northern
District of
Texas
Western
District of
Washington
Eastern District
of Virginia
27
22
55
0
283
18
405
11
44
56
0
248
33
392
14
32
69
1
229
28
373
District of
Colorado
9
27
28
0
285
17
366
District of Utah
Southern
District of
Texas
Northern
District of Ohio
15
17
39
41
34
51
2
2
247
214
20
18
357
343
13
33
14
0
268
15
343
Eastern District
of New York
6
28
29
0
245
34
342
Eastern District
of Missouri
16
24
26
0
170
55
291
District of
Arizona
10
23
28
0
193
17
271
Western
District of
Wisconsin
District of
Oregon
12
38
31
2
155
18
256
19
23
8
0
160
41
251
EX D to the Declaration to the Declaration of Anne E. Huffsmith in Support of Reply in Support of Motion to Transfer Venue Page 7 of 37
8
AIPLA Q.J.
Vol. 38:4
District of
Maryland
Eastern District
of Wisconsin
7
21
40
0
161
13
242
7
34
21
0
162
17
241
Southern
District of Ohio
8
22
23
0
149
16
218
Western
District of
Texas
District of
Nevada
9
18
17
0
151
5
200
24
28
15
0
117
14
198
District of
Columbia
9
25
19
0
59
3
115
The districts with the most patent cases largely track population and
technology centers—Northern California, Los Angeles, Chicago, New York and
New Jersey—with two exceptions: the District of Delaware, which is the state of
incorporation of many litigants, and the Eastern District of Texas, which has little
connection to innovation, except its choice as a destination for patent plaintiffs.
Even among these districts, the patentee win rate varies substantially.
Table 3 sorts the top thirty-three districts by patentee win rate.
Claim
Defendant
Win
Procedural
Indeterminate
Likely
Settlement
Consent
Judgment
TOTAL
Claimant Win
Percentage
Northern
District of
Texas
27
22
55
0
283
18
405
55.1%
Middle
District of
Florida
District of
Nevada
District of
Delaware
District of
Oregon
25
29
49
2
277
47
429
46.3%
24
28
15
0
117
14
198
46.2%
62
75
137
0
682
61
1017
45.3%
19
23
8
0
160
41
251
45.2%
District
Claimant Win
Table 3: Patentee Win Rate in Districts with 25 or More Outcomes
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2010
9
Where to File Your Patent Case
Eastern
District of
Texas
52
77
150
0
703
42
1024
40.3%
Eastern
District of
Missouri
District of
Massachusetts
16
24
26
0
170
55
291
40.0%
43
69
41
1
392
38
584
38.4%
Southern
District of
New York
Central
District of
California
Western
District of
Texas
51
87
87
1
676
116
1018
37.0%
125
219
193
11
1401
340
2289
36.3%
9
18
17
0
151
5
200
33.3%
Northern
District of
Illinois
District of
Minnesota
47
97
119
3
874
93
1233
32.6%
25
54
28
0
450
43
600
31.6%
Eastern
District of
Virginia
District of
Arizona
Southern
District of
Texas
Northern
District of
Ohio
Southern
District of
Florida
District of
Utah
Southern
District of
California
Eastern
District of
Pennsylvania
14
32
69
1
229
28
373
30.4%
10
23
28
0
193
17
271
30.3%
17
41
51
2
214
18
343
29.3%
13
33
14
0
268
15
343
28.3%
25
65
71
1
282
34
478
27.8%
15
39
34
2
247
20
357
27.8%
21
56
24
1
380
37
519
27.3%
15
40
42
3
342
33
475
27.3%
EX D to the Declaration to the Declaration of Anne E. Huffsmith in Support of Reply in Support of Motion to Transfer Venue Page 9 of 37
10
AIPLA Q.J.
26.7%
9
25
19
0
59
3
115
26.5%
56
159
131
0
1007
71
1424
26.0%
18
54
34
0
378
30
514
25.0%
9
27
28
0
285
17
366
25.0%
7
21
40
0
161
13
242
25.0%
12
38
31
2
155
18
256
24.0%
29
109
201
0
588
60
987
21.0%
11
44
56
0
248
33
392
20.0%
6
28
29
0
245
34
342
17.6%
7
34
21
0
162
17
241
17.1%
7
54
69
1
265
61
457
11.5%
Claimant
Win
Percentage
218
TOTAL
16
Consent
Judgment
149
Likely
Settlement
0
Indeterminat
23
Procedural
22
Claim
Defendant
Win
8
Claimant
Win
Southern
District of
Ohio
District of
Columbia
Northern
District of
California
Eastern
District of
Michigan
District of
Colorado
District of
Maryland
Western
District of
Wisconsin
District of
New Jersey
Western
District of
Washington
Eastern
District of
New York
Eastern
District of
Wisconsin
Northern
District of
Georgia
TOTAL
OUTCOMES
Vol. 38:4
989
2054
2223
37
14542
1822
21667
32.5%
The variation in win rates ranges from a high of 55% in the Northern
District of Texas to a low of 11.5% in the Northern District of Georgia.
Statistically, then, it seems that the jurisdiction in which a case is litigated has a
EX D to the Declaration to the Declaration of Anne E. Huffsmith in Support of Reply in Support of Motion to Transfer Venue Page 10 of 37
2010
Where to File Your Patent Case
11
significant impact on its outcome. 14 Even limiting the analysis to the largest
districts—those with more than 100 judgments on the merits—the variation is
substantial, ranging from a high of 45.3% in the District of Delaware to a low of
21% in the District of New Jersey. Notably, the Eastern District of Texas, while
having a higher than average plaintiff win rate, is not in the top five districts.
Moreover, the districts that are in the top five (the Northern District of Texas, the
Middle District of Florida, the District of Nevada, the District of Delaware, and
the District of Oregon) are not normally thought of as patent plaintiffs’
jurisdictions of choice. Indeed, accused infringers often choose the District of
Delaware, filing declaratory judgment actions there.
Conversely, patent
plaintiffs often file suit in districts, like the District of New Jersey, that have a
surprisingly low win rate. In short, if patentees or accused infringers are to pick
a forum only by win rate, both sides should probably be picking different
districts than they do.
It is important to note, however, that your mileage may vary. The win
rate in any district will be a function of the merits of the cases filed there. For
example, one experienced litigator suggested to me that patentees fare so well in
the District of Nevada and the Middle District of Florida because those
jurisdictions are home to many trade shows, and cases brought against a new
product demonstrated at a trade show may be stronger than the average patent
case. So the fact that patentees have won in a district in the past doesn’t mean
you will win if you file there. Indeed, the fact that plaintiffs gravitate to a
particular jurisdiction because it is viewed as plaintiff-friendly may reduce the
ultimate win rate if those plaintiffs assert patents of lower overall quality than
the cases filed before the influx.
Of course, win rate is not all that matters. Most cases don’t go to
judgment, after all. And if the patentee is interested in trial—which is where the
patentee win rate is the highest, and the largest judgments are possible—things
look rather different. Table 4 ranks the top thirty-three districts by the
percentage of patent cases that make it to trial.
14
To be clear, this is not a causal claim: it may be the nature of the cases, the
lawyers, or something else that explains part or all of this difference.
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12
AIPLA Q.J.
Vol. 38:4
TOTAL
Claimant
Win
Percentage
Cases to
Trial
Percentage
to Trial
District of
Delaware
Eastern
District of
Texas
Western
District of
Wisconsin
Eastern
District of
Virginia
District of
Massachusetts
Southern
District of
Florida
Eastern
District of
Missouri
Western
District of
Texas
Middle
District of
Florida
Southern
District of
Texas
District of
Oregon
Northern
District of
California
Southern
District of
California
Claim
Defendant
Win
District
Claimant
Win
Procedural
Table 4: Percentage of Patent Cases that Result in Trial in Districts with 25 or
More Outcomes
62
75
1017
45.3%
120
11.8%
52
77
1024
40.3%
82
8.0%
12
38
256
24.0%
19
7.4%
14
32
373
30.4%
24
6.4%
43
69
584
38.4%
36
6.2%
25
65
478
27.8%
21
4.4%
16
24
291
40.0%
12
4.1%
9
18
200
33.3%
8
4.0%
25
29
429
46.3%
17
4.0%
17
41
343
29.3%
12
3.5%
19
23
251
45.2%
8
3.2%
56
159
1424
26.0%
44
3.1%
21
56
519
27.3%
16
3.1%
EX D to the Declaration to the Declaration of Anne E. Huffsmith in Support of Reply in Support of Motion to Transfer Venue Page 12 of 37
2010
13
Where to File Your Patent Case
District of
Arizona
District of
Nevada
District of
Maryland
Northern
District of
Texas
District of
Minnesota
District of
Colorado
Eastern
District of
Michigan
District of
New Jersey
Northern
District of
Georgia
Northern
District of
Illinois
Southern
District of
New York
Central
District of
California
Eastern
District of
Pennsylvania
Northern
District of
Ohio
Eastern
District of
New York
Eastern
District of
Wisconsin
10
23
271
30.3%
7
2.6%
24
28
198
46.2%
5
2.5%
7
21
242
25.0%
6
2.5%
27
22
405
55.1%
10
2.5%
25
54
600
31.6%
14
2.3%
9
27
366
25.0%
8
2.2%
18
54
514
25.0%
11
2.1%
29
109
987
21.0%
21
2.1%
7
54
457
11.5%
8
1.8%
47
97
1233
32.6%
20
1.6%
51
87
1018
37.0%
16
1.6%
125
219
2289
36.3%
35
1.5%
15
40
475
27.3%
7
1.5%
13
33
343
28.3%
4
1.2%
6
28
342
17.6%
3
0.9%
7
34
241
17.1%
2
0.8%
EX D to the Declaration to the Declaration of Anne E. Huffsmith in Support of Reply in Support of Motion to Transfer Venue Page 13 of 37
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AIPLA Q.J.
15
39
357
27.8%
2
0.6%
8
22
218
26.7%
1
0.5%
9
25
115
26.5%
0
0.0%
989
2054
Percentage
to Trial
0.8%
Cases to
Trial
3
Claimant
Win
Percentage
20.0%
TOTAL
392
Procedural
44
Claim
Defendant
Win
11
Claimant
Win
Western
District of
Washington
District of
Utah
Southern
District of
Ohio
District of
Columbia
TOTAL
OUTCOMES
Vol. 38:4
21667
32.5%
602
2.8%
These numbers seem more reflective of the conventional wisdom among
patent plaintiffs. While on average only 2.8% of patent cases go to trial, a far
higher percentage make it to trial in the District of Delaware, the Eastern District
of Texas, the Western District of Wisconsin, and the Eastern District of Virginia.
With the exception of Delaware, all these are traditional patent plaintiff districts
of choice. By contrast, six districts send less than 1% of their cases to trial. One
might reasonably expect accused infringers to target those districts, though as
mentioned above, many are—apparently foolishly—sending their cases to
Delaware instead.
Finally, plaintiffs are frequently interested in speed. A speedy trial can
hold down costs and get a plaintiff quick relief. A speedy settlement can have
the same effect. Both can allow a patentee to build a war chest to sue other
defendants, and, in the case of trial, build the reputation of the patent.
Defendants’ incentives are less clear; defendants generally want to delay any day
of reckoning, and may think they can wear down a plaintiff in a long case, but
they too will probably pay more in legal fees in slow jurisdictions than in fast
ones. Table 5 ranks the district courts by their time to ultimate disposition of the
case.
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Where to File Your Patent Case
Claim
Defendant
Win
TOTAL
Claimant Win
Percentage
Time to
Resolution
(in years)
Western District of
Wisconsin
12
38
256
24.0%
0.56
Eastern District of
Virginia
Western District of
Washington
14
32
373
30.4%
0.64
11
44
392
20.0%
0.80
Southern District
of Florida
District of
Colorado
Middle District of
Florida
Central District of
California
Northern District
of Ohio
Northern District
of Illinois
Northern District
of Texas
Western District of
Texas
District of
Maryland
Northern District
of Georgia
Southern District
of California
25
65
478
27.8%
0.83
9
27
366
25.0%
0.88
25
29
429
46.3%
0.89
125
219
2289
36.3%
0.89
13
33
343
28.3%
0.91
47
97
1233
32.6%
0.95
27
22
405
55.1%
0.97
9
18
200
33.3%
0.98
7
21
242
25.0%
1.00
7
54
457
11.5%
1.02
21
56
519
27.3%
1.03
District of
Delaware
Southern District
of Texas
District of Utah
62
75
1017
45.3%
1.05
17
41
343
29.3%
1.06
15
39
357
27.8%
1.07
16
24
291
40.0%
1.07
District
Claimant Win
Table 5: Districts with 25 or More Outcomes, Sorted by Time to Resolution
Eastern District of
Missouri
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Vol. 38:4
District of Nevada
24
28
198
46.2%
1.09
Eastern District of
Michigan
Southern District
of New York
18
54
514
25.0%
1.10
51
87
1018
37.0%
1.12
Eastern District of
New York
District of
Columbia
District of New
Jersey
District of Oregon
6
28
342
17.6%
1.13
9
25
115
26.5%
1.14
29
109
987
21.0%
1.14
19
23
251
45.2%
1.14
District of
Minnesota
Eastern District of
Wisconsin
25
54
600
31.6%
1.18
7
34
241
17.1%
1.21
Eastern District of
Texas
Southern District
of Ohio
Northern District
of California
52
77
1024
40.3%
1.24
8
22
218
26.7%
1.28
56
159
1424
26.0%
1.28
District of Arizona
10
23
271
30.3%
1.28
District of
Massachusetts
Eastern District of
Pennsylvania
43
69
584
38.4%
1.29
15
40
475
27.3%
1.32
The differences here are not that dramatic.
Most districts take
approximately a year to resolve the average patent case. But there are some
notable—and well-known—“rocket dockets.” The Western District of Wisconsin
and the Eastern District of Virginia resolve the average case in just over six
months. The Western District of Washington and the Southern District of Florida
are not far behind. Interestingly, the Eastern District of Texas is among the
slowest jurisdictions, only slightly faster than the Northern District of California.
This is likely a function of congestion resulting from its popularity as a patent
forum; the sense in the bar in the early 2000s was that the Eastern District of
EX D to the Declaration to the Declaration of Anne E. Huffsmith in Support of Reply in Support of Motion to Transfer Venue Page 16 of 37
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Where to File Your Patent Case
Texas was a fast docket. 15 Here too your mileage may vary; if everyone moves to
a fast district, it can easily become a slow district as a result.
Related to time to resolution is time to trial. Table 6 ranks the districts by
time to trial.
15
TOTAL
Claimant Win
Percentage
Cases to Trial
Percentage to
Trial
Time to Trial
(in years)
Western
District of
Wisconsin
Eastern District
of Virginia
Southern
District of
Florida
Middle District
of Florida
District of
Delaware
District of
Oregon
Eastern District
of Texas
Western
District of
Washington
District of
Maryland
Northern
District of
Texas
Southern
District of
Texas
Claim
Defendant
Win
District
Claimant Win
Table 6: Districts with 25 or More Outcomes, Sorted by Time to Trial
12
38
256
24.0%
19
7.4%
0.67
14
32
373
30.4%
24
6.4%
0.96
25
65
478
27.8%
21
4.4%
1.66
25
29
429
46.3%
17
4.0%
2.00
62
75
1017
45.3%
120
11.8%
2.03
19
23
251
45.2%
8
3.2%
2.07
52
77
1024
40.3%
82
8.0%
2.13
11
44
392
20.0%
3
0.8%
2.19
7
21
242
25.0%
6
2.5%
2.22
27
22
405
55.1%
10
2.5%
2.26
17
41
343
29.3%
12
3.5%
2.38
See, e.g., Alisha Kay Taylor, Comment, What Does Forum Shopping in the
Eastern District of Texas Mean for Patent Reform?, 6 J. MARSHALL REV. INTELL.
PROP. L. 570, 570 (2007).
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Vol. 38:4
District of
Nevada
Central District
of California
Southern
District of
California
Eastern District
of Missouri
Western
District of
Texas
Northern
District of
Illinois
Northern
District of Ohio
District of
Massachusetts
Southern
District of New
York
Northern
District of
California
District of
Arizona
District of
Minnesota
District of Utah
24
28
198
46.2%
5
2.5%
2.39
125
219
2289
36.3%
35
1.5%
2.47
21
56
519
27.3%
16
3.1%
2.48
16
24
291
40.0%
12
4.1%
2.52
9
18
200
33.3%
8
4.0%
2.52
47
97
1233
32.6%
20
1.6%
2.52
13
33
343
28.3%
4
1.2%
2.61
43
69
584
38.4%
36
6.2%
2.66
51
87
1018
37.0%
16
1.6%
2.85
56
159
1424
26.0%
44
3.1%
2.92
10
23
271
30.3%
7
2.6%
2.95
25
54
600
31.6%
14
2.3%
2.96
15
39
357
27.8%
2
0.6%
2.99
District of New
Jersey
Eastern District
of Pennsylvania
29
109
987
21.0%
21
2.1%
3.06
15
40
475
27.3%
7
1.5%
3.09
Northern
District of
Georgia
District of
Colorado
Eastern District
of New York
Southern
District of Ohio
7
54
457
11.5%
8
1.8%
3.10
9
27
366
25.0%
8
2.2%
3.19
6
28
342
17.6%
3
0.9%
3.28
8
22
218
26.7%
1
0.5%
3.30
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Where to File Your Patent Case
Eastern District
of Michigan
Eastern District
of Wisconsin
18
54
514
25.0%
11
2.1%
3.41
7
34
241
17.1%
2
0.8%
3.51
District of
Columbia
9
25
115
26.5%
0
0.0%
n/a
Not surprisingly, there are some similarities between time to resolution
and time to trial, though the average time to trial is much longer than the average
resolution, reflecting the prevalence of early settlements. The Western District of
Wisconsin and the Eastern District of Virginia are truly rocket dockets; in those
districts the average patent trial was completed less than a year after the case was
filed. Notably, however, districts that are among the slowest to total resolution,
including the Eastern District of Texas and the Northern District of California,
are much faster than others when it comes to bringing cases to trial.
What is notable about all these measures is that no district court stands
out as the best for plaintiffs or defendants on every measure. In other words,
parties that want to forum shop must make tradeoffs.
To facilitate those tradeoffs, the following tables rank the districts by
their aggregate standing on each of the possible measures: patentee win rate, the
percentage of cases to trial, the time to resolution, and the time to trial. Table 7
presents a simple aggregate ranking, adding the rank of each district on each of
the four measures. The lower the aggregate ranking number, the better the
district is for patent plaintiffs; the higher the aggregate ranking, the better the
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AIPLA Q.J.
Vol. 38:4
district is for accused infringers. The magnitude of the numeric differences gives
a coarse indication of how much more desirable one district is than another. 16
16
Time to
Resolution
Ranking
Time to Trial
Ranking
Aggregate
Ranking
Middle District
of Florida
Eastern District
of Virginia
District of
Delaware
Southern
District of
Florida
Western District
of Wisconsin
Northern
District of Texas
Eastern District
of Texas
Western District
of Texas
District of
Percent to Trial
Ranking
District
Claimant Win
Percentage
Ranking
Table 7: Aggregate Ranking of Districts
2
9
6
4
21
14
4
2
2
22
4
1
15
5
25
18
6
4
3
31
28
3
1
1
33
1
17
10
10
38
6
2
28
7
43
11
8
11
16
46
5
11
25
6
47
I ran a more sophisticated approach that compared the ratio of each district
on each measure to the mean for that measure. That allows me to test the
effect of the size of the difference between each district on the various
measures. Doing so required inverting the ratio for the time to resolution and
time to trial results, as lower numbers were desirable there. I have not
reprinted the analysis because I think it distorts the results in favor of districts
that happen to be outliers on measures with higher standard deviation
(specifically, percentage to trial and time to trial), and creates other anomalies
as well. For those nonetheless interested, the most favorable patentee
jurisdictions on that analysis were the Western District of Wisconsin, the
Eastern District of Virginia, the District of Delaware, the Eastern District of
Texas, and the Middle District of Florida. The jurisdictions most favorable to
accused infringers were the District of the District of Columbia, the Southern
District of Ohio, the Eastern District of Wisconsin, the Eastern District of New
York, and the District of Utah.
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Where to File Your Patent Case
Oregon
Eastern District
of Missouri
District of
Nevada
Southern
District of Texas
Central District
of California
Northern
District of
Illinois
Southern
District of
California
District of
Maryland
District of
Massachusetts
Northern
District of Ohio
Western District
of Washington
Southern
District of New
York
District of
Colorado
District of
Minnesota
District of
Arizona
Northern
District of
California
District of Utah
Northern
District of
Georgia
Eastern District
of Michigan
District of New
Jersey
7
7
18
15
47
3
15
19
12
49
16
10
16
11
53
10
25
7
13
55
12
23
9
17
61
20
13
14
14
61
25
16
12
9
62
8
5
32
19
64
17
27
8
18
70
30
30
3
8
71
9
24
21
20
74
26
19
5
28
78
13
18
26
23
80
15
14
31
22
82
24
12
30
21
87
19
31
17
24
91
33
22
13
27
95
27
20
20
31
98
29
21
24
25
99
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AIPLA Q.J.
Eastern District
of Pennsylvania
Eastern District
of New York
District of
Columbia
Southern
District of Ohio
Eastern District
of Wisconsin
Vol. 38:4
21
26
33
26
106
31
28
22
29
110
23
33
23
33
112
22
32
29
30
113
32
29
27
32
120
The best aggregate patent district for plaintiffs is, surprisingly, the
Middle District of Florida. As shown in Table 7 above, it is the only district that
is in the top ten in every measure, with a ranking of two for claimant win
percentage, nine for percentage of claims to trial, six for time to resolution, and
four for time to trial. The other jurisdictions in the top five are somewhat less of
a surprise: the Eastern District of Virginia, the District of Delaware, the Southern
District of Florida, and the Western District of Wisconsin. What is surprising is
that the Eastern District of Texas isn’t in the five best districts for patent
plaintiffs. On the accused infringer side, the most favorable jurisdictions are the
Eastern District of Wisconsin, the Southern District of Ohio, the District of
Columbia, the Eastern District of New York, and the Eastern District of
Pennsylvania.
Aggregating rankings is, of course, a crude measure of how favorable a
district is likely to be. Depending on a party’s preferences, some of these districts
might not look so favorable. For example, one of the top plaintiff’s jurisdictions,
the Western District of Wisconsin, actually ranks near the bottom in terms of
patentee win rate. A patentee more concerned with winning than with speed
would presumably not want to sue there. To account for these different
preferences, Table 8 double counts the role of outcomes to present a rank
ordering for an outcome-oriented plaintiff. The results do not change that much;
the Northern District of Texas appears in the top five plaintiff jurisdictions,
replacing the Western District of Wisconsin, and the Eastern District of Texas
edges into the top five in a tie for fifth place. The District of New Jersey edges
out the Eastern District of Pennsylvania as a prime jurisdiction for accused
infringers.
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Where to File Your Patent Case
Time to
Resolution
Ranking
Time to Trial
Ranking
Aggregate
Ranking
Weighted to
Outcomes
Middle District
of Florida
District of
Delaware
Eastern District
of Virginia
Northern
District of Texas
Southern
District of
Florida
Eastern District
of Texas
District of
Oregon
District of
Nevada
Eastern District
of Missouri
Western District
of Texas
Western District
of Wisconsin
Central District
of California
Southern
District of Texas
District of
Massachusetts
Northern
District of
Illinois
Southern
District of
California
Southern
District of New
Percent to Trial
Ranking
District
Claimant Win
Percentage
Ranking
Table 8: Outcome-Emphasis Ranking of Districts with 25 or More Outcomes
2
9
6
4
23
4
1
15
5
29
14
4
2
2
36
1
17
10
10
39
18
6
4
3
49
6
2
28
7
49
5
11
25
6
52
3
15
19
12
52
7
7
18
15
54
11
8
11
16
57
28
3
1
1
61
10
25
7
13
65
16
10
16
11
69
8
5
32
19
72
12
23
9
17
73
20
13
14
14
81
9
24
21
20
83
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York
District of
Maryland
Northern
District of Ohio
District of
Minnesota
District of
Arizona
Western District
of Washington
District of
Colorado
District of Utah
Northern
District of
California
Eastern District
of Michigan
Eastern District
of Pennsylvania
Northern
District of
Georgia
District of New
Jersey
District of
Columbia
Southern
District of Ohio
Eastern District
of New York
Eastern District
of Wisconsin
25
16
12
9
87
17
27
8
18
87
13
18
26
23
93
15
14
31
22
97
30
30
3
8
101
26
19
5
28
104
19
31
17
24
110
24
12
30
21
111
27
20
20
31
125
21
26
33
26
127
33
22
13
27
128
29
21
24
25
128
23
33
23
33
135
22
32
29
30
135
31
28
22
29
141
32
29
27
32
152
Perhaps plaintiffs have other preferences. Table 9 shows the ranking for
a plaintiff particularly interested in getting to trial, double-counting both the
percentage of cases that go to trial and the time to trial. The order of the top five
patentee jurisdictions changes, with the Eastern District of Virginia topping the
list, but the top five stay the same. The same is true of the top five accused
infringer jurisdictions.
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Where to File Your Patent Case
Time to
Resolution
Ranking
Time to Trial
Ranking
Aggregate
Ranking
Weighted to
Trials
Eastern District
of Virginia
District of
Delaware
Middle District
of Florida
Western District
of Wisconsin
Southern
District of
Florida
Eastern District
of Texas
District of
Oregon
Northern
District of Texas
Eastern District
of Missouri
Western District
of Texas
Southern
District of Texas
District of
Nevada
District of
Maryland
District of
Massachusetts
Southern
District of
California
Central District
of California
Northern
District of
Percent to Trial
Ranking
District
Claimant Win
Percentage
Ranking
Table 9: Trial-Emphasis Ranking of Districts with 25 or More Outcomes
14
4
2
2
28
4
1
15
5
31
2
9
6
4
34
28
3
1
1
37
18
6
4
3
40
6
2
28
7
52
5
11
25
6
64
1
17
10
10
65
7
7
18
15
69
11
8
11
16
70
16
10
16
11
74
3
15
19
12
76
25
16
12
9
87
8
5
32
19
88
20
13
14
14
88
10
25
7
13
93
12
23
9
17
101
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AIPLA Q.J.
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Illinois
Western District
of Washington
Northern
District of Ohio
Southern
District of New
York
District of
Arizona
Northern
District of
California
District of
Minnesota
District of
Colorado
Northern
District of
Georgia
District of New
Jersey
District of Utah
Eastern District
of Michigan
Eastern District
of Pennsylvania
Eastern District
of New York
Southern
District of Ohio
District of
Columbia
Eastern District
of Wisconsin
30
30
3
8
109
17
27
8
18
115
9
24
21
20
118
15
14
31
22
118
24
12
30
21
120
13
18
26
23
121
26
19
5
28
125
33
22
13
27
144
29
21
24
25
145
19
31
17
24
146
27
20
20
31
149
21
26
33
26
158
31
28
22
29
167
22
32
29
30
175
23
33
23
33
178
32
29
27
32
181
Finally, Table 10 shows the results for a plaintiff interested only in speed,
double-weighting time to resolution and time to trial. Once again the top five
districts for both patentees and accused infringers change their order but remain
the same. Notably, by this measure the Eastern District of Texas drops to ninth
place, behind the Central District of California.
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Where to File Your Patent Case
Time to Trial
Ranking
Aggregate
Outcome
Weighted to
Speed
District of
Delaware
Northern
District of Texas
Western District
of Texas
Central District
of California
Eastern District
of Texas
District of
Oregon
Eastern District
of Missouri
Southern
District of Texas
District of
Nevada
Western District
of Washington
District of
Maryland
Northern
District of
Illinois
Southern
District of
Time to
Resolution
Ranking
Eastern District
of Virginia
Middle District
of Florida
Western District
of Wisconsin
Southern
District of
Florida
Percent to
Trial Ranking
District
Claimant Win
Percentage
Ranking
Table 10: Speed-Emphasis Ranking of Districts with 25 or More Outcomes
14
4
2
2
26
2
9
6
4
31
28
3
1
1
35
18
6
4
3
38
4
1
15
5
45
1
17
10
10
58
11
8
11
16
73
10
25
7
13
75
6
2
28
7
78
5
11
25
6
78
7
7
18
15
80
16
10
16
11
80
3
15
19
12
80
30
30
3
8
82
25
16
12
9
83
12
23
9
17
87
20
13
14
14
89
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California
Northern
District of Ohio
District of
Colorado
District of
Massachusetts
Southern
District of New
York
District of
Minnesota
District of Utah
17
27
8
18
96
26
19
5
28
111
8
5
32
19
115
9
24
21
20
115
13
18
26
23
129
19
31
17
24
132
District of
Arizona
Northern
District of
Georgia
Northern
District of
California
District of New
Jersey
Eastern District
of Michigan
Eastern District
of New York
Eastern District
of Pennsylvania
District of
Columbia
Southern
District of Ohio
Eastern District
of Wisconsin
15
14
31
22
135
33
22
13
27
135
24
12
30
21
138
29
21
24
25
148
27
20
20
31
149
31
28
22
29
161
21
26
33
26
165
23
33
23
33
168
22
32
29
30
172
32
29
27
32
179
The results, in short, seem fairly stable across a variety of likely
preferences, and they reflect received wisdom only in part. Accused infringers
should be trying to litigate in the Eastern District of Wisconsin, the Southern
District of Ohio, or the District of Columbia, none of which are currently on the
radar screen of most patent lawyers. Patentees should be suing in a variety of
districts, including the District of Delaware, the Eastern District of Virginia, and
EX D to the Declaration to the Declaration of Anne E. Huffsmith in Support of Reply in Support of Motion to Transfer Venue Page 28 of 37
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Where to File Your Patent Case
29
the Western District of Wisconsin. Virginia and Wisconsin aren’t much of a
surprise, but patent lawyers seem to overvalue the Eastern District of Texas and
undervalue the District of Delaware. 17 And as for the best—and least
appreciated—jurisdiction for patent plaintiffs? Let’s put it this way:
Q: “Mark, you’ve just completed an exhaustive study of where to file
your patent suit. What are you going to do now?”
A: “I’m going to Disney World.”
17
But cf. John E. Kidd & Keeto H. Sabharwal, The District of Delaware: An Ideal
Venue for Patent Litigators, 18 DEL. LAW. 16, 17 (2000) (explaining why the
Delaware District court is an ideal venue for patent plaintiffs).
EX D to the Declaration to the Declaration of Anne E. Huffsmith in Support of Reply in Support of Motion to Transfer Venue Page 29 of 37
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AIPLA Q.J.
Vol. 38:4
Appendix A
Patent Litigation Outcomes by Court
Court
Outcomes
Claimant Win
Claim
Defendant Win
Procedural
Indeterminate
Likely
Settlement
Consent
Judgment
TOTAL
Claimant Win
Percentage
First Circuit
District of
Maine
0
3
1
0
19
2
25
0.0%
District of
Massachusetts
43
69
41
1
392
38
584
38.4%
District of New
Hampshire
5
11
6
0
45
6
73
31.3%
District of
Rhode Island
5
6
5
0
38
4
58
45.5%
District of
Puerto Rico
0
2
3
0
4
1
10
0.0%
Subtotal
53
91
56
1
498
51
750
36.8%
Claimant Win
Claim
Defendant Win
Procedural
Indeterminate
Likely
Settlement
Consent
Judgment
TOTAL
Claimant Win
Percentage
Second Circuit
District of
Connecticut
4
17
21
0
209
27
278
19.0%
Northern
District of New
York
4
2
4
0
76
7
93
66.7%
Eastern District
of New York
6
28
29
0
245
34
342
17.6%
Southern
District of New
York
Western
District of New
York
51
87
87
1
676
116
1018
37.0%
4
10
17
0
122
10
163
28.6%
EX D to the Declaration to the Declaration of Anne E. Huffsmith in Support of Reply in Support of Motion to Transfer Venue Page 30 of 37
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31
Where to File Your Patent Case
District of
Vermont
Subtotal
1
0
3
0
18
1
23
100.0%
70
144
161
1
1346
195
1917
32.7%
Claimant Win
Claim
Defendant Win
Procedural
Indeterminate
Likely
Settlement
Consent
Judgment
TOTAL
Claimant Win
Percentage
Third Circuit
District of
Delaware
62
75
137
0
682
61
1017
45.3%
District of New
Jersey
29
109
201
0
588
60
987
21.0%
Eastern District
of Pennsylvania
15
40
42
3
342
33
475
27.3%
Middle District
of Pennsylvania
6
1
5
1
33
8
54
85.7%
Western
District of
Pennsylvania
5
18
21
0
123
14
181
21.7%
District of
Virgin Islands
0
0
0
0
0
0
0
N/A
Subtotal
117
243
406
4
1768
176
2714
32.5%
Claimant Win
Claim
Defendant Win
Procedural
Indeterminate
Likely
Settlement
Consent
Judgment
TOTAL
Claimant Win
Percentage
Fourth Circuit
District of
Maryland
7
21
40
0
161
13
242
25.0%
Eastern District
of North
Carolina
Middle District
of North
Carolina
3
8
3
0
47
11
72
27.3%
6
10
5
0
106
23
150
37.5%
Western
District of
North Carolina
5
7
9
0
117
15
153
41.7%
EX D to the Declaration to the Declaration of Anne E. Huffsmith in Support of Reply in Support of Motion to Transfer Venue Page 31 of 37
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AIPLA Q.J.
Vol. 38:4
District of
South Carolina
Eastern District
of Virginia
Western
District of
Virginia
Northern
District of West
Virginia
5
15
11
0
88
12
131
25.0%
14
32
69
1
229
28
373
30.4%
2
6
4
0
31
1
44
25.0%
2
1
6
0
16
4
29
66.7%
Southern
District of West
Virginia
Subtotal
0
2
1
0
4
0
7
0.0%
44
102
148
1
799
107
1201
30.1%
Claimant Win
Claim
Defendant Win
Procedural
Indeterminate
Likely
Settlement
Consent
Judgment
TOTAL
Claimant Win
Percentage
Fifth Circuit
Western
District of
Louisiana
2
5
4
0
39
3
53
28.6%
Northern
District of
Mississippi
Southern
District of
Mississippi
Northern
District of
Texas
0
1
3
0
6
1
11
0.0%
0
5
4
0
5
2
16
0.0%
27
22
55
0
283
18
405
55.1%
Eastern District
of Texas
52
77
150
0
703
42
1024
40.3%
Southern
District of
Texas
Western
District of
Texas
Eastern District
of Louisiana
17
41
51
2
214
18
343
29.3%
9
18
17
0
151
5
200
33.3%
3
1
17
0
53
13
87
75.0%
EX D to the Declaration to the Declaration of Anne E. Huffsmith in Support of Reply in Support of Motion to Transfer Venue Page 32 of 37
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33
Where to File Your Patent Case
Middle District
of Louisiana
0
0
4
0
13
0
17
N/A
Subtotal
110
170
305
2
1467
102
2156
39.3%
Claimant Win
Claim
Defendant Win
Procedural
Indeterminate
Likely
Settlement
Consent
Judgment
TOTAL
Claimant Win
Percentage
Sixth Circuit
Eastern District
of Kentucky
Western
District of
Kentucky
Eastern District
of Michigan
2
5
6
0
29
2
44
28.6%
2
1
1
0
40
3
47
66.7%
18
54
34
0
378
30
514
25.0%
Western
District of
Michigan
Northern
District of Ohio
6
15
9
0
110
12
152
28.6%
13
33
14
0
268
15
343
28.3%
Southern
District of Ohio
8
22
23
0
149
16
218
26.7%
Eastern District
of Tennessee
3
3
4
0
33
3
46
50.0%
Middle District
of Tennessee
5
7
7
1
43
2
65
41.7%
Western
District of
Tennessee
Subtotal
5
4
9
0
33
14
65
55.6%
62
144
107
1
1083
97
1494
30.1%
Claimant Win
Procedural
Indeterminate
Likely
Settlement
Consent
Judgment
TOTAL
Claimant Win
Percentage
Northern
District of
Illinois
Claim
Defendant Win
Seventh Circuit
47
97
119
3
874
93
1233
32.6%
EX D to the Declaration to the Declaration of Anne E. Huffsmith in Support of Reply in Support of Motion to Transfer Venue Page 33 of 37
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AIPLA Q.J.
Vol. 38:4
Central District
of Illinois
6
4
2
0
37
8
57
60.0%
Southern
District of
Illinois
Northern
District of
Indiana
Southern
District of
Indiana
Eastern District
of Wisconsin
Western
District of
Wisconsin
Subtotal
0
2
3
0
14
4
23
0.0%
0
9
7
0
72
13
101
0.0%
7
7
22
0
106
10
152
50.0%
7
34
21
0
162
17
241
17.1%
12
38
31
2
155
18
256
24.0%
79
191
205
5
1420
163
2063
29.3%
Claimant Win
Claim
Defendant Win
Procedural
Indeterminate
Likely
Settlement
Consent
Judgment
TOTAL
Claimant Win
Percentage
Eighth Circuit
Eastern District
of Arkansas
Western
District of
Arkansas
Northern
District of Iowa
Southern
District of Iowa
District of
Minnesota
Eastern District
of Missouri
Western
District of
Missouri
District of
Nebraska
3
3
1
0
14
10
31
50.0%
1
2
1
0
14
3
21
33.3%
3
2
0
0
17
1
23
60.0%
7
7
2
0
52
10
78
50.0%
25
54
28
0
450
43
600
31.6%
16
24
26
0
170
55
291
40.0%
5
12
3
0
69
8
97
29.4%
2
7
3
0
47
5
64
22.2%
District of
North Dakota
1
2
4
0
13
1
21
33.3%
EX D to the Declaration to the Declaration of Anne E. Huffsmith in Support of Reply in Support of Motion to Transfer Venue Page 34 of 37
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35
Where to File Your Patent Case
District of
South Dakota
Subtotal
0
0
0
0
9
2
11
N/A
63
113
68
0
855
138
1237
35.8%
Claimant Win
Claim
Defendant Win
Procedural
Indeterminate
Likely
Settlement
Consent
Judgment
TOTAL
Claimant Win
Percentage
Ninth Circuit
District of
Arizona
Northern
District of
California
Eastern District
of California
10
23
28
0
193
17
271
30.3%
56
159
131
0
1007
71
1424
26.0%
8
16
6
2
64
8
104
33.3%
Central District
of California
Southern
District of
California
District of
Hawaii
District of
Idaho
District of
Montana
District of
Nevada
District of
Oregon
Eastern District
of Washington
125
219
193
11
1401
340
2289
36.3%
21
56
24
1
380
37
519
27.3%
4
3
1
0
17
9
34
57.1%
6
3
0
0
28
3
40
66.7%
2
2
2
1
10
1
18
50.0%
24
28
15
0
117
14
198
46.2%
19
23
8
0
160
41
251
45.2%
0
12
4
0
35
7
58
0.0%
Western
District of
Washington
District of
Guam
11
44
56
0
248
33
392
20.0%
0
0
1
0
0
0
1
N/A
District of
Northern
Mariana
Islands
0
0
0
0
0
0
0
N/A
EX D to the Declaration to the Declaration of Anne E. Huffsmith in Support of Reply in Support of Motion to Transfer Venue Page 35 of 37
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AIPLA Q.J.
Vol. 38:4
District of
Alaska
0
0
0
0
1
0
1
N/A
Subtotal
286
588
469
15
3661
581
5600
32.7%
Claimant Win
Percentage
366
25.0%
2
6
6
0
62
8
84
25.0%
2
2
3
0
12
0
19
50.0%
1
1
2
0
33
2
39
50.0%
0
1
1
0
0
0
2
0.0%
3
12
3
0
34
5
57
20.0%
15
39
34
2
247
20
357
27.8%
District of
Wyoming
Subtotal
0
1
0
0
10
1
12
0.0%
32
89
77
2
683
53
936
26.4%
Eleventh
Circuit
Northern
District of
Alabama
Middle District
of Alabama
Southern
District of
Alabama
Claimant Win
Percentage
TOTAL
17
TOTAL
Consent
Judgment
285
Consent
Judgment
Likely
Settlement
0
Likely
Settlement
Indeterminate
28
Indeterminate
Procedural
27
Procedural
Claim Defendant
Win
9
Claim
Defendant Win
District of
Colorado
District of
Kansas
District of New
Mexico
Northern
District of
Oklahoma
Eastern District
of Oklahoma
Western
District of
Oklahoma
District of Utah
Claimant Win
Claimant Win
Tenth Circuit
2
2
6
0
27
9
46
50.0%
0
0
0
0
6
0
6
N/A
1
2
1
1
6
0
11
33.3%
EX D to the Declaration to the Declaration of Anne E. Huffsmith in Support of Reply in Support of Motion to Transfer Venue Page 36 of 37
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37
Where to File Your Patent Case
Northern
District of
Florida
Middle District
of Florida
Southern
District of
Florida
Northern
District of
Georgia
Middle District
of Georgia
1
1
3
0
19
3
27
50.0%
25
29
49
2
277
47
429
46.3%
25
65
71
1
282
34
478
27.8%
7
54
69
1
265
61
457
11.5%
2
0
2
0
14
1
19
100.0%
Southern
District of
Georgia
Subtotal
1
1
1
0
7
1
11
50.0%
64
154
202
5
903
156
1484
29.4%
Claimant Win
Percentage
115
26.5%
Subtotal
9
25
19
0
59
3
115
26.5%
TOTAL
OUTCOMES
Claimant Win
Percentage
TOTAL
3
TOTAL
Consent
Judgment
59
Consent
Judgment
Likely
Settlement
0
Likely
Settlement
Indeterminate
19
Indeterminate
Procedural
25
Procedural
Claim
Defendant Win
9
Claim
Defendant Win
District of
Columbia
Claimant Win
Claimant Win
District of
Columbia
Circuit
989
2054
2223
37
14542
1822
21667
32.5%
EX D to the Declaration to the Declaration of Anne E. Huffsmith in Support of Reply in Support of Motion to Transfer Venue Page 37 of 37
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