Transfers from the So-Called “Rocket Docket” May Reach Escape Velocity

Patent infringement suits against national corporations can be brought in virtually any district court in the United States. See Elizabeth P. Offen-Brown, Forum Shopping and Venue Transfer in Patent Cases: Marshall’s Response to TS Tech and Genetech, 25 Berkeley Tech. L.J. 61, 66 (2010). The past decade saw a dramatic surge in the increase of patent infringement suits filed in the Eastern District of Texas. See id. at 70; Julie Creswell, So Small a Town, So Many Patent Suits, N.Y. Times (Sept. 24, 2006). The Eastern District’s popularity is generally attributed to plaintiff-friendly juries, large jury awards in patent infringement cases, and relatively short times to trial. Even though most cases filed in the Eastern District have little or no connection to that forum, defendants have typically had little success in transferring cases elsewhere. However, the Eastern District may be losing its status as a “rocket docket” known for speedy trials and judges hesitant to grant venue transfer motions. Over the past two years, the Federal Circuit has increasingly scrutinized denials of motions to transfer venue, making the Eastern District less attractive to forum-shopping plaintiffs. Also, time to trial has increased to over two years.

Motions to transfer venue in patent cases, like all federal civil cases, are governed by 28 U.S.C. § 1404(a), which permits transfer “[f]or the convenience of the parties and witnesses.” In the Fifth Circuit, a party seeking transfer must establish that the proposed venue is “clearly more convenient” than the plaintiff’s chosen venue. In re Volkswagen of America, Inc., 545 F.3d 304, 315 (5th Cir. 2008) (“Volkswagen II”) (en banc). The transfer analysis requires courts to consider a number of “public” and “private” interest factors, including, among others: (1) the relative ease of access to sources of proof; (2) the availability of compulsory process; (3) the cost of attendance for witnesses; and (4) the local interest in having localized interests decided at home. Id.

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