Reassessing Jurors’ Attitudes in Light of the Growing Uncertainty of Venue in Patent Litigation

Upended again, predominant venues for patent litigation have become increasingly difficult to predict. First, the 2017 TC Heartland decision effectively put an end to the dominance of Marshall’s Rocket Docket. Patent cases filed in the Eastern District of Texas dropped from 1,665 in 2016 to 505 in 2018. Then, following Judge Albright’s appointment in 2018, the Waco Division of the Western District of Texas became the new hub of patent litigation. In 2021, the number of patent cases in his courtroom totaled over 900, which comprised nearly 20% of all patent litigation filed in that year.[1] However, in July, an order from Western District’s Chief Judge Orlando Garcia changed the game yet again. Rather than being assigned geographically – which had resulted in Judge Albright hearing virtually all of the patent cases filed in the District –  patent cases filed in the Western District would be assigned randomly and equitably across all divisions. Many observers predict this order will significantly curtail the number of patent cases filed not only in the Waco Division but also in the Western District as a whole.   Absent a guarantee that the case would be heard by Judge Albright, the District will likely lose some of its appeal.

It’s too early to tell if caseloads will shift to any particular venue or will be distributed more equitably. After TC Heartland, the District of Delaware became the top venue, edging out the EDTX. And if the number of patent cases filed in WDTX falls as expected, Delaware would seem to be the favorite to take the top spot again. The number of patent cases in Judge Andrews’ courtroom, one of the three judges who hear patent cases in Delaware, has already increased in 2022.[2] However, other venues, such as WDVA, NDCA, CDCA, DNJ, and NDIL, are likely to see some increases as well.

General counsel and patent litigators need to prepare for the possibility of finding themselves facing infringement allegations in any number of different venues. While the calculus of risks associated with different venues is complex, too often, jury issues take the back seat. This tendency is in part due to the absence of truly comparative studies of prospective jurors’ attitudes and beliefs in different venues. This absence is understandable given that most jury research is conducted on a case-specific, venue-specific, and client-specific basis. As a result, risk assessments are often limited, anecdotally-based, and less reliable.

In 2020, DOAR conducted a comparative survey of jury-eligible respondents in three venues to begin to fill this void. The study surveyed jury-eligible respondents in the Waco Division of the Western District of Texas, the Northern District of California, and the District of Delaware on a range of issues relevant to patent disputes. These venues were chosen because they represent very different parts of the country and are common venues for high-tech patent litigation.  The study found that while there is a good deal of similarity among jury-eligible populations in these venues when it comes to issues central to high-tech patent disputes, there are also significant differences.

  • Prospective jurors in the NDCA are more tech-savvy than those in the Waco Division or District of Delaware. This difference is especially notable among women.
  • Prospective jurors in Delaware are the most trusting of Big Tech, believing more strongly than prospective jurors in other venues that American tech companies are ethical.
  • Prospective jurors both in Delaware and the Waco Division harbor more suspicion of foreign tech companies when it comes to patent infringement.  They, more than their California counterparts, believe that foreign companies are more likely than American companies to disregard US patent law or steal technology.

Depending on the nature of the case and the parties involved, these differences can increase or decrease the risks posed by a particular venue. Only by confronting these differences early can parties begin to plan and prepare for future litigation wherever it is filed.

[1] RPX, Q4 in Review: NPEs Cap Off a Busy 2021 as SEP Policies Evolve in the US and UK, Jan. 11, 2022

[2] Morris, Angela. Five Things to Know About Judge Richard G. Andrews. IAM, Aug. 29, 2022

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