In "Everything's Bigger in Texas" Adage, Everything Includes Patent Infringement Lawsuits

Innovative persons, groups, or businesses that believe they have a patent-worthy invention often submit a non-provisional patent application to the USPTO, typically through in-house or hired patent attorneys. After a hard-fought battle with a designated patent examiner, an applying party may be lucky enough to receive the hallowed “notice of allowance,” signifying the application’s acceptance as a full-fledged patent, complete with all the intellectual property protections contained within its claims.

But what exactly happens when a party believes the protections they were granted by the USPTO through their patent have been encroached upon? For newcomers to the patent game, the question is how to fight a patent infringer. Yet for veterans of the patent game, the more apt question is where to fight the infringer. And increasingly the answer is becoming the Federal District Court for the Eastern District of Texas.

In 2012, the Eastern District of Texas played host to over 2,600 defendants in patent litigation lawsuits, or just under 1/5 of all defendants in the United States, and 1700 plaintiffs, with the District of Delaware and Central District of California being the only two other districts to exceed 750 defendants and 1000 plaintiffs.

So what hold or pull, if any, does the Eastern District of Texas have on patent lawsuit plaintiffs? For starters, the Eastern District of Texas is one of a handful of district courts to be dubbed a “rocket docket,” meaning patent cases tried before the district have a reputation of proceeding quickly, at least relative to other districts. Quicker proceedings are believed by some in the patent litigation business to be advantageous to the plaintiff. Whether or not this is actually the case nationwide is debatable, but in the case of the Eastern District of Texas, and more specifically in Marshall, Texas, the belief is consistent with the data. As of 2006, patent plaintiffs in the Marshall courtroom won 88% of cases that reached a trial, a full 20% higher than the national average.

For a party defending against infringement claims in the Eastern District of Texas, these numbers are quite harrowing. The uphill battle faced by defendants in this district is a strong disincentive to go to trial, and thus an equally strong incentive to settle, in many cases irrespective of the strength of the plaintiff’s case.

The America Invents Act of 2011 sought, among many other things, to curb the overwhelming patent litigation statistics of the Eastern District of Texas by implementing a few rules regarding multiple defendant patent infringement suits. At first, it appeared to have worked, as the District of Delaware took the top spot for patent infringement filings for the latter half of 2011. But as the abovementioned statistics indicate, 2012 saw a return to form for the plaintiff-friendly Eastern District of Texas.

Perhaps more reforms are on the horizon to encourage or ensure unanimity between the various courts in the United States that hear patent infringement cases. But until then, patent litigation will be, in fact, bigger in Texas.

Remick Stahl
Law Clerk at