...The causes that have been suggested are judges with expertise and experience in patent litigation, local rules that are often favorable to the plaintiff, a general judicial disinclination to grant summary judgment and jurors who tend to favor patent holders – so much so that for one three year period, there were 20 consecutive plaintiff victories without a single defense win in a patent case in the district.6 More broadly, from 1995 to 2007, plaintiffs won in over 70% of the district's jury patent trials, the third-highest plaintiff win rate in the country.7 In 2008 the district fell to seventh place, with a plaintiff win rate of 61%.8
While plaintiffs' chances of winning at trial may have started to decrease, a fundamental truth remains: When plaintiffs win at trial in East Texas, they tend to win big. In 2008, the median damages award in patent cases was $20.4 million, the third highest in the country.9 Moreover, in mid-2009, East Texas jurors awarded the largest US jury verdict to date in a patent case: $1.67 billion to Centocor Ortho Biotech and NYU after finding that Abbott Laboratories had infringed their patents.10
These are not the only factors that have contributed to plaintiffs' choices to file in the Eastern District of Texas. Judicial expertise in patent cases, local rules that favor plaintiffs and a faster-than-average case disposition time have also helped to establish the District as a preferred venue for patent plaintiffs. In fact, the district – and in particular Marshall – has been called a "haven for patent pirates"11 and Supreme Court Justice Antonin Scalia has called it a "renegade jurisdiction."12 Marshall was also held up as an example of the problems in patent law that result in plaintiffs having wide latitude in forum-shopping.13
Assume Tom conceives of a new mousetrap on January 1, 2006. Tom works diligently from January 1, 2006, to February 1, 2006, to prepare a patent application, and Tom files his patent application on February 1, 2006. Thus, Tom constructively reduced his invention to practice on February 1, 2006. Assume Jerry conceives of the same mousetrap on January 10, 2006, and diligently files a patent application on the new mousetrap on January 20, 2006. Under the first-to-invent system, Tom is entitled to the patent on the mousetrap, because he conceived the mousetrap before Jerry and still worked diligently to reduce it to practice by filing.
As a further extension of the example, assume Tweety conceived of the same mousetrap on December 31, 1990. Tweety never told anyone about the mousetrap and did not work on reducing the mousetrap to practice for many years due to financial reasons. Tweety finally actually reduced the mousetrap to practice on February 15, 2006. Because Tweety did not diligently work to reduce the invention to practice in the period before others' conception of the same invention, he is not entitled to a patent over Tom or Jerry.
However, if Tweety has published his idea before 2006, then this publication can be a basis to reject or invalidate Tom or Jerry's patent. Source
In contrast to popular perception of unusual bias in East Texas, some may find it surprising to learn that the complete affirmance rate of patent cases from that District is actually higher than many other popular patent districts, and a bit higher than the national average. Likewise, East Texas fares well compared to other districts and nationally in the percentage of cases that have been affirmed at least in part.
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