Is Delaware the new Texas? A neck-and-neck race to the finish

By Denise Seastone Kraft

For at least the past five years, the Eastern District of Texas and the District of Delaware have been favored forums for plaintiffs alleging patent infringement, with the number of patent case filings shooting up sharply in both districts after the enactment of the America Invents Act in September 2011. Together, these two venues account for almost half of all new patent case filings in the US.

Until recently, the Eastern District of Texas was the more popular venue. During 2012, 1,266 patent cases were filed in the Eastern District of Texas, compared with 995 in the District of Delaware. However, the number of patent case filings in Delaware continued to increase in 2013, to the point where more patent cases were filed in the District of Delaware than the Eastern District of Texas through the end of the third quarter of 2013. According to Docket Navigator, through 10 September 2013 there were 1,019 patent cases filed in the District of Delaware and 923 filed in the Eastern District of Texas. Yet two months later, the Eastern District of Texas had edged out the District of Delaware, with 1,287 patent cases versus 1,196 in Delaware.

As the two venues continue to ring up patent case filings, many in the patent community will be watching closely through the end of 2013 to see which will finish the year with the most filings. In the meantime, a more immediate question has arisen: what is attracting plaintiffs to file in the District of Delaware in larger numbers than in the past? …

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