Patent Venue and Convenience Transfer: New World or Small Shift?

June 16, 2012

In the wake of a large rise of patent infringement suit filings in the Eastern District of Texas in recent years, critics have complained that the court is too receptive to such filings and too reluctant to transfer them to other districts. Accusations of forum shopping have been prevalent. However, as long as Congress provides a plurality of acceptable districts in which cases of agiven type can be filed, lawyers are duty-bound to select the one perceived as best for their clients; defense counsel are similarly obliged to try to move the case to a place seen as more hospitable to the defendant’s positions. It is then up to the courts themselves to sort out venue in light of existing provisions of law, notably the convenience transfer provision of 28 U.S.C. § 1404(a). Normally a matter of judicial discretion, some recent decisions refusing transfer of patent cases have been reversed for abuse of discretion. The present article studies the questions of (i) whether, prior to the recent cases, the Eastern District of Texas held onto civil cases more often than other courts; and (ii) whether the district kept more patent cases than other high-patent-volume districts did. Both are answered essentially in the negative. The court has transferred civil cases generally, and patent cases in particular, as often or more often than the average for all federal courts nationally.