Patent Cases Rise, With Two Courts Leading the Nation

Over the last two years, filings of patent cases in federal courts have risen 12 percent to 6,401. While many districts show a double-digit increase in the number of patent filings in 2012-2013, the District of Delaware and the Eastern District of Texas saw the largest growth in patent cases, respectively, at 364 and 275 filings.

Part of the increase can be traced back to a change in the law. A provision of the 2011 America Invents Act (pdf) stipulates that “accused infringers may not be joined in one action as defendants or counterclaim defendants, or have their actions consolidated for trial, based solely on allegations that they each have infringed the patent or patents in suit.” One case may easily become multiple cases under the new law.

But even before AIA, patent cases filed in the District of Delaware were on the upswing. “From 2009 -2010, filings went from 244 to 274, before nearly doubling to 506 in 2010-2011. In 2011-2012, patent filings totaled 1,103. Last calendar year, cases jumped to 1,377. It’s been going on for years,” said Clerk of Court John Cerino. In calendar year 2012, patent cases comprised 55 percent of Delaware’s overall civil caseload. By calendar year 2013, they made up 63 percent of the district’s civil caseload. The cases are assigned randomly to the four Article III judges currently sitting in the district. “Every year since 2000, (with the exception of 2007), Delaware has had the highest patent caseload per judge in the nation,” Cerino said. “And these are incredibly intensive and complex cases.”

Overall, Delaware’s per judge weighted caseload is the second highest in the country and the Judicial Conference has recommended the creation of a fifth permanent judgeship to help the district. In 2013, Senator Christopher Coons (D-DE) and Senator Patrick Leahy (D-VT) introduced S. 1385, the "Federal Judgeship Act of 2013,” which reflects all the Conference's judgeship recommendations, including a new judgeship for Delaware.

In the Eastern District of Texas where 1,386 patent cases were filed in FY 13, Clerk of Court David Maland does not hesitate to attribute the rise in patent filings to AIA. “We had lots of multi-defendant patent cases prior to AIA, so cases proliferated further after AIA,” said Maland. “Now we are averaging about seven or eight cases per patent.”

The district also is one of the 14 district courts selected to participate in the national patent pilot project. Five of its six onboard Article III judges take part in the 10-year project, which is designed to enhance expertise in patent cases among district judges. The court also has a number of magistrate judges who are skilled in handling patent cases.

The Eastern District of Texas has a weighted caseload per judgeship that is the third highest in the nation, just behind Delaware. Although the court is authorized eight judgeships, it has been operating for some time with two vacancies. The Judicial Conference has recommended two additional permanent judgeships for Texas Eastern and the conversion of a temporary judgeship to permanent. Given the circumstances, Maland is concerned about the court’s future capacity to handle the workload: “With two existing judicial vacancies and two more expected in 2015 on an eight-judge court, it’s hard to see how we’ll be able to maintain our current, fairly efficient disposition rate with patent cases.”