This study analyzes the rate of reversal on appeal of each district court for the most popular patent litigation forums in the United States. Alarmingly, this study finds that district courts which have been shopped for by litigants may also be the courts that are most often applying patent law erroneously. Among these districts is the notoriously patentee-friendly Eastern District of Texas, which has attracted huge volumes of litigants to its dockets in recent years.
Although forum shopping has always antagonized the fairness of civil proceedings, it is of special problem in the context of patent litigation. Where billions of dollars may be at stake for companies being sued for patent infringement, the equal, fair and standardized application of patent law is especially important. However, this study finds that district courts may be applying patent law incorrectly at very different rates, with some courts being reversed on appeal at much higher rates than others. Because the most popular courts, those that have been "shopped" for, also appear to be the courts that are most frequently applying the law incorrectly, in those courts there is much greater risk of expenses and inefficiencies associated with the appeals and re-litigation of remanded cases, and the lack of assurance in not knowing whether the law has been correctly applied in any one case. This study can bring more certainty to patent litigators, shedding more light on the effect that litigating in a particular forum may have on the ultimate outcome of a patent case.
Shopping for Reversals: How Accuracy Differs across Patent Litigation Forums,
Chi.-Kent J. Intell. Prop.
Available at: https://scholarship.kentlaw.iit.edu/ckjip/vol12/iss1/2