It’s been one week since TC Heartland was decided. I thought I’d take a preliminary look at how the decision has changed case filing strategies. In order to do so, I looked at at how many new patent cases had been filed in which jurisdictions from Tuesday-Friday of last week (5/23-5/26), in comparison to the Tuesday-Friday filings in each of the five previous weeks.
I should note up front: total filings were down last week compared to the previous five, likely at least in part due to the effects of TC Heartland. We might see a return to old trends as litigants figure out how to apply the ruling in the coming weeks.
The results? E.D. Texas is wounded, but not dead.
E.D. Texas (hot pink) has historically seen somewhere between one third and one half of all new case filings. This week? 9%. That’s a large reduction, but that’s still 9% of all patent cases in the Eastern District of Texas (which has 1.2% of the U.S. population.) That 9% represents 4 new cases this week, 3 of which are by the same plaintiff (Uniloc) against the same defendant (Apple). The other case, Weatherford v. Tesco, is a suit by a Texas entity against a Canadian company with subsidiaries that provide oil drilling parts and services in Texas, including a facility within the Eastern District of Texas.
Where are the cases going? Filings in Delaware (green) have roughly doubled (23.3%) against their historical average (11.2%). And more companies seem to be getting sued at home in the Northern District of California (aqua, 11.6%, up from 3.5%).
So far, at least some of the predictions I made are playing out. Companies with stores (Apple) or operations (Tesco) in Eastern Texas are still going to be sued in the Eastern District of Texas. And the other cases seem to be flowing to Delaware and California. TC Heartland will help some people avoid the Eastern District of Texas, but it isn’t a complete solution to venue, much less to patent trolls.