Forum Shopping in Patent Cases: Does Geographic Choice Affect Innovation?

Abstract

This Article undertakes the first large-scale empirical analysis of patent enforcement in the district courts. My database includes every patent case that was terminated from 1995 to 1999 (5 years of data) in every district court (9615 cases). This Article is organized around three major questions. Can variation in patent case resolution among jurisdictions be substantiated? Is jurisdictional variation and the resulting forum shopping good or efficient? Can forum shopping be reduced or eliminated?

The empirical results demonstrate that despite the creation of the Federal Circuit, choice of forum continues to play a critical role in the outcome of patent litigation. The data indicate that patent cases are not evenly dispersed throughout the 94 judicial districts or dispersed according to the relative size of the court's civil docket generally, but rather consolidated in a few select jurisdictions. The ten most frequently selected fora are examined in detail to ascertain their appeal for patent holders. There is no single explanation why each of these ten jurisdictions hosts large numbers of patent filings. The empirical results substantiate procedural and substantive differences in adjudication of patent cases by these top ten jurisdictions.

The lack of uniformity in patent enforcement is problematic. With increasingly national and international competition among products, the patent jurisdiction and venue statutes allow plaintiffs to bring their patent suits in virtually any district in the country. Providing plaintiffs with many potential venues for bringing suit increases the ability of parties to forum shop.

The Article concludes by considering whether the patent system might benefit from the increased predictability that could be achieved by a specialized trial court or a more limited venue statute.