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.