One Week of TC Heartland

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. Tex Weekly % Of All Cases Filed E.D. Texas is wounded, but not dead.  

Patent litigation filing locations for 5/23-5/26 vs. previous five weeks

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.

Joshua Landau

Joshua Landau is the Patent Counsel at the Computer & Communications Industry Association (CCIA), where he represents and advises the association regarding patent issues.  Mr. Landau joined CCIA from WilmerHale in 2017, where he represented clients in patent litigation, counseling, and prosecution, including trials in both district courts and before the PTAB.

Prior to his time at WilmerHale, Mr. Landau was a Legal Fellow on Senator Al Franken’s Judiciary staff, focusing on privacy and technology issues.  Mr. Landau received his J.D. from Georgetown University Law Center and his B.S.E.E. from the University of Michigan.  Before law school, he spent several years as an automotive engineer, during which time he co-invented technology leading to U.S. Patent No. 6,934,140.

Follow @PatentJosh on Twitter.

 

  • Jonathan Stroud

    Josh, fascinating statistics. I noted a successful motion to transfer venue rule on in Somaltus, an IP Edge entity. There the Judge, in a short order, transferred the case the the ND Ohio for a company where both parties conceded the company, NOHO, was not incorporated in Texas and also did not have a place of business in ED Tex.

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