Extreme forum concentration in patent cases

It's often claimed that patent law and its enforcement (or not) affects consumer well-being. We know, for instance, that the presence of a patent (or not) often has a significant effect on a drug's price. And drug companies maintain that patent protection promotes innovation, in turn, they say, benefiting consumers. (For more on that topic, go here.)

Once issued, the durability of a patent often comes down to whether a court will enforce it. So, I was interested to learn recently something that perhaps many of our readers already know: more than a quarter of all U.S. patent cases are filed before one federal district judge sitting in Marshall, Texas. That's the topic of Judge Shopping in the Eastern District of Texas by Jonas Anderson. Here is the abstract:

Judge Rodney Gilstrap has a lot of patent cases on his docket. In fact, in 2015 there were 1,686 patent cases that were filed and assigned to Judge Gilstrap, an astronomical number for a single judge. Judge Gilstrap — one of eight federal judges who sit on the Eastern District of Texas — is so popular with patent plaintiffs that over one-fourth of all patent cases in the country are heard by him. This Article addresses the problems with allowing this judge shopping to occur. It reviews the scholarship on the topic that is almost universally opposed to judge shopping for reasons of judicial legitimacy. In addition to those concerns, this Article argues against judge shopping for a separate reason. Judge shopping is often a way that district courts compete for litigation. It is this competition that poses the greatest threat to judicial impartiality. To effectively root out judge shopping in patent cases, some form of venue reform is needed in patent law. Either congressional action or changes from the Supreme Court are required to more evenly distribute the patent cases across the country. 

Leave a Reply

Your email address will not be published. Required fields are marked *