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In re TS Tech: The Aftermath
On Dec. 29, 2008, in In re TS Tech, the U.S. Court of Appeals for the Federal Circuit (“CAFC”) issued a rare writ of mandamus ordering the Eastern District of Texas (“EDTX”) to transfer a patent case to the defendants' venue choice. 551 F.3d 1315 (Fed. Cir. 2008) (“TS Tech“). Many patent attorneys and commentators immediately predicted that this decision would be the “death knell” for patent litigation in the EDTX, while a minority of others foresaw the case having little impact. Now that some time has passed since the TS Tech decision, it appears that neither prediction was entirely accurate. While the EDTX remains today one of the busiest patent litigation venues in the country, it is clear that TS Tech has led to an increase in the percentage of cases being transferred out of the EDTX and a significant decrease in the number of new patent cases being filed there. Indeed, as of the end of April this year, the EDTX no longer reigns as the most popular U.S. venue for patent litigation, a distinction it has held for the last two years.
Background
A number of years ago, after the EDTX adopted local patent rules aimed at streamlining and expediting patent cases, it became the venue of choice for patent plaintiffs seeking to minimize litigation costs and reduce the amount of time defendants had to prepare their defenses. The EDTX consequently gained a reputation as a “plaintiff friendly” patent litigation venue in which plaintiffs could get to trial quickly (at one point in as short a period as a little over a year) and prevailed in the majority of cases. The popularity of the EDTX was soon greatly enhanced when it became apparent that defendants enjoyed little success in getting cases transferred out of the district, even in cases having no meaningful connection to that venue. Indeed, prior to TS Tech, the EDTX denied more than 60% of motions to transfer brought before it in patent cases. By 2007, the EDTX was by far the busiest patent venue in the country, with a docket of 368 patent cases, 32 more than the next most active patent venue, the Central District of California.
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