Forum Shopping for Patent Litigation Using the Latest Data

Patent infringement plaintiffs have the choice of filing a complaint under 28 U.S.C. § 1400(b) in any jurisdiction where the defendant’s products are sold or being used. That seemingly simple-sounding choice can become quite complex and may have a real impact on the length and expense of the litigation. It is not uncommon for plaintiffs and defendants to jockey for the most favorable jurisdiction. This article attempts to summarize the data from a recent Stanford Intellectual Property Litigation Clearinghouse (IPLC) article and provide some pointers on how to determine the best forum for your client’s patent suit. In order to contextualize the analysis, it is important to remember that things can be very different depending on which side of the courtroom you find yourself.

First, as expected, both sides want to win. So it is critical to review for the current date to determine if a particular jurisdiction or judge is typically pro-plaintiff or pro-defendant. Second, patentee-plaintiffs generally have an incentive to get to trial when they have managed to get to a pro-patent venue. Not surprisingly, accused infringers generally prefer to delay a resolution and tend to file a lot of motions. There exist historical data to support the notion that most pretrial motion rulings favor defendants and juries have a tendency to favor the patentee-plaintiff. (See John R. Allison and Mark A. Lemley’s 1998 article in the AIPLA Quarterly Journal , “Empirical Evidence on the Validity of Litigated Patents,” finding that plaintiffs win 67 percent of jury verdicts on the issue of validity but comparably only 28 percent of pretrial motions.)