Motion Trends After TC Heartland: What’s the Relief When Venue is Improper?

Lex Machina’s 2017 patent litigation year in review which is out today, says that “[w]hile the odds of success in E.D. Tex. for a motion to transfer filed prior to TC Heartland were roughly even, afterwards the grant rate increased to 75%” and notes that motions decided almost doubled in the period 180 days after compared to 180 days before (Report at p. 9).  Incidentally, some of these numbers are not new – the grant rate for motions to transfer in EDTX has hovered at 50% for the past three years.  But this puts a number on both the increased numbers of granted motions, and the increased percentage of grants.

Interestingly, it notes, as shown in the above graph, that this pattern was repeated in other districts – the grant rates went from 54% (51% in EDTX) to 74% (75% in EDTX), with the only statistically significant difference being that the number of motions decided in other districts increased even more than they did in EDTX, illustrating a little-reported effect of TC Heartland – it changed the basis for venue for patent cases across the nation – not just in EDTX.

The report doesn’t distinguish between motions to transfer under Section 1404, which was by far the most common motion to transfer under 1404, and motions to dismiss or transfer based on improper venue, which were more common after TC Heartland changed the law on patent venue, but there is one important distinction between the two and that is the relief granted.  While the grant of a motion to transfer is a transfer to a district that is “clearly more convenient”, the relief on a motion to dismiss or transfer for improper venue can be transfer, or it can be simply dismissal.

This is the decision presented in a recent case where an EDTX court considered whether a case where venue was improper should be transferred, or dismissed.

Claim construction – part 2 – how are “emergency” motions and “exceptional” case status related?

You say it’s urgent
Make it fast, make it urgent
Do it quick, do it urgent
Gotta rush, make it urgent
Want it quick
Urgent, urgent, emergency
Urgent, urgent, emergency
Urgent, urgent, emergency
Urgent, urgent, emergency
Urgent, Foreigner (1981).
Ah yes, Foreigner.  Their multiplatinum album 4 was the soundtrack of my senior year in high school (Fast Times at Ridgmont High didn’t come out till late in the year) and provides the perfect entry into today’s “what not to do in a filing”.

 

Federal Circuit affirms EDTX “stop instruction”

The conditioning of a jury question on an affirmative answer to a prior question is called a “stop instruction” because it explicitly tells the jury to “STOP” if it found “no” to the prior question.

A common example is an instruction to the jury not to answer a question asking if the patent claim is invalid if it just answered that the claim is not infringed.   That isn’t the case in all trials – if it were then a no claims infringed / no claims valid verdict wouldn’t be possible, and most years that is either the most or the second most common single verdict locally.  And it’s the most common defense verdict, certainly – for example in 2017 of the five noninfringement verdicts where invalidity was also submitted, the jury found the claims invalid in four. (It also found the claims invalid in a fifth case where the claims were infringed).

Last week the Federal Circuit addressed this issue in a case from Judge Gilstrap’s court and affirmed the court’s use of – and later enforcement of – the “stop instruction” under the interesting facts of that case.

Hatch-Waxman Cases, MDL Panels & Stays

While you’re enjoying Parker’s perfect snow angel from Tuesday, I wanted to note that the segment of patent litigation that was affected the most significantly by TC Heartland was pharmaceutical cases, and as I discussed in my paper presented in November, one of the potential solutions to the additional venue obstacles is multidistrict litigation (MDL) proceedings.

One recent EDTX case indicates that that perennial bridesmaid in search of a wedding may actually be approaching at least one altar.

Motion to Dismiss for Improper Venue Granted; Cordis & Cray analyzed

With In Re Cray clarifying to some extent when venue is proper based on the alleged existence of a regular and established place of business, cases are starting to get thumbs up or thumbs down on pending venue motions at an accelerating pace, providing additional analysis on where in the Cordis/Cray continuum they fit.

Like this one.