Court competition for patent cases.

• Author: Anderson, J. Jonas
• Position: II. Court Competition B. Court Competition in Patent Litigation 2. Judicial Ability to Compete through Conclusion, with footnotes, p. 666-698

2. Judicial Ability to Compete

   If we assume that judges may, in some instances, be motivated to compete for litigants, what tools can those judges use to attract litigants? A wide variety of characteristics influence forum shopping, but many are outside of a court's control. For instance, the makeup of a court's potential jury pool is highly important to litigants, yet it is also a characteristic that courts cannot change or improve. The quality of a district's jury pool is a function of the job opportunities and educational offerings found within a district's boundaries. (204) Courts have no direct impact on demographic factors.

   More fundamentally, courts are unable to offer explicitly what the forum shopper is ultimately seeking, namely, a successful suit. Simply offering victory to the highest bidder is antithetical to the judicial process.

   The notion of selling justice is abhorrent to notions of equity and fair-play. (205) Courts and judges in the United States have vehemently and consistently rejected such an idea. The courts have successfully limited corruption in judicial dealings through a number of mechanisms.

   One of the most important of these corruption-deterring mechanisms is appellate review. (206) If a trial court judge or an entire court were to dole out justice without reliance on sound legal principles, the appellate court assigned to review the case would quickly reverse the trial court's decision. This second look at cases limits a trial court's ability to increase filings by always siding with the plaintiff. In essence, the trial courts can be thought to operate in a heavily regulated environment. Even if a court desired to explicitly offer successful outcomes to plaintiffs, it could not do so because judicial checks are built into the system.

   But district courts that are interested in impacting venue decisions have some tools at their disposal. In general, by decreasing the uncertainty and risk inherent in litigation in ways favorable to plaintiffs, courts can try to compete with other courts for those litigants. If a court or a judge can increase the odds of success for plaintiffs (even slightly) and signal that fact to future plaintiffs, the court may be successful in attracting cases to its court.

   One way to attract plaintiffs is to offer appealing procedural rules that are not offered by other courts. Even though all district courts are bound by the Federal Rules of Civil Procedure, a number of district courts have adopted additional procedural rules for patent cases--called patent local rules (PLRs)--often in an attempt to attract litigants. (207) Some litigants prefer litigating in districts with PLRs because case scheduling and discovery proceed in a more predictable manner than they might otherwise. Some litigants prefer PLRs because they may inherently favor their side.

   A second way to attract litigants is by offering more predictable case management procedures than other courts. Case management refers to a court's administrative oversight of the litigation process. (208) Decisions concerning the flow and process of litigation are often insulated from appellate review by the abuse of discretion standard. (209) While case management decisions are often not reviewable or are reviewed with a high level of deference on appeal, they can be extremely important to litigants. For instance, a judge's decision on the length of time for or the scope of the discovery process can at times be as important as a decision on a legal issue. (210) Judges and courts establish discovery norms. If predictable, those discovery norms can appeal to plaintiffs and encourage more filings.

   Because district courts control most case management decisions and those decisions can be important to litigants, one would expect such decisions to be a primary way in which district courts seek to attract litigation to their courtrooms. This is precisely what has occurred in patent law.

   a. Procedural Distinctions: Patent Local Rules

   Among the forum-shopping factors that districts can control, perhaps none is as effective at signaling a district's interest in attracting patent litigants as the creation of patent local rules. (211) Patent local rules establish procedural rules and schedules for the handling of patent cases in a district. In districts with PLRs, litigants know ex ante the general format and timeline that any potential patent suit might take. For the great majority of litigants interested in reducing uncertainty, PLRs can be very appealing.

   In 2000, the Northern District of California became the first district court to adopt patent local rules. (212) The Northern District's PLRs established standards for initial case management conferences, (213) required heightened pleading standards, (214) and set a detailed schedule for managing the claim construction portion of patent cases. (215) Numerous districts have followed the lead of the Northern District of California in adopting PLRs. (216)

   Of course, not all plaintiffs prefer filing in districts with PLRs. One of the leading venues for patent litigation over the last decade--the Central District of California--does not have formalized patent rules, but the district has consistently drawn large numbers of patent cases to its courts. (217) A large population and concentration of technology companies is likely the primary driver of the popularity of the Central District, but some have argued that the flexibility of a court that is not bound by the strict timeline of PLRs can attract litigants who may want to propose alternative schedules and timeframes to the court. (218)

   Adopting local rules does not guarantee that patent litigants will suddenly prefer a particular district court. The Western District of Pennsylvania adopted local rules in 2005 in an effort to signal its desire to hear more patent cases. (219) The district has not seen a significant increase in patent filings since that time. (220) Other districts, including the Western District of Tennessee, the Western District of North Carolina, the District of Idaho, and the District of New Hampshire, have adopted PLRs in an effort to attract litigants, but with little success. (221)

   Indeed, although PLRs may serve as a signal that a district court is interested in attracting patent cases, adopting PLRs has generally failed to increase filings in a district. Empirical evidence has found no correlation between adoption of PLRs and an increase in patent case volume. (222) In some ways, PLRs represent an announcement that a district court is

   interested in hearing patent cases. While courts can advertise their interest, plaintiffs are generally in control of the venue decision--at least until a court considers transfer.

   b. Case Management Distinctions

   The second major category of tools that courts can employ when competing for litigants is the administrative management of their cases. There are many ways that a court might devise attractive or repellant case management practices. This subsection will focus on four practices that have been employed successfully in court competition for patent cases: (l) case assignment procedures, (2) trial philosophy, (3) reluctance to transfer, and (4) speed.

   i. Case Assignment Procedure: The Ability to Judge Shop

   As any experienced litigator will tell you, the judge assigned to a case is more important than the district in which the case is filed. (223) Certain judges have reputations for being irrational, curmudgeonly, or unfair while others are viewed as even-handed, fair, or easy-going. (224) Most districts have procedures for assigning cases that limit the ability of any particular plaintiff to select any particular judge. (225) This system does not guarantee fairness, but it attempts to ensure that each case has roughly the same odds of landing before any particular judge.

   If a court intends to attract filings, however, eliminating or reducing the random nature of case assignments can help. (226) Two districts, the Eastern District of Texas and the Eastern District of Virginia, have tinkered with their case assignment procedures with an eye toward impacting patent litigation filings. As detailed in subsection II.A.2.C, supra, the Eastern District of Virginia reconfigured its judge assignment procedures in 2002. (227) The district's new assignment procedure increased the uncertainty of judge and divisional assignment of patent cases--and only patent cases. (228) The increased unpredictability of judge assignment has reduced the appeal of the district to patent litigants, which was the goal behind the amended procedure. (229)

   Like the Eastern District of Virginia, the Eastern District of Texas has, over the years, modified its case assignment procedure for patent cases. Unlike its counterpart in Virginia, however, the Eastern District of Texas altered its procedures with an eye towards increasing the district's appeal to patent plaintiffs.

   The Eastern District of Texas is split into six divisions: Texarkana, Marshall, Sherman, Beaumont, Tyler, and Lufkin. (230) Because the district can have up to eight active judges, a random case assignment procedure would force litigants to risk assignment to a judge who has handled relatively few patent cases or who dislikes patent cases entirely. (231) To reduce the risk of drawing an unsatisfactory judge for a patent case, the Eastern District has adopted a case assignment system that allows plaintiffs, in some instances, to select a particular judge.

   The district's case assignment system is nominally random. (232) However, the Chief Judge, in accordance with his powers under 28 U.S.C. [section] 137, periodically issues general orders that modify the percentage of divisional cases that are assigned to particular judges. (233) The patent case assignment proportions in the Eastern District of Texas differ from the general civil case assignment proportions: a particular judge might be assigned 50% of the general civil...