ITC or district court: considering the optimal forum for US patent infringement cases

When considering the optimal forum for bringing a patent infringement case in the US, litigators may find it useful to take into account not only client exposure and received wisdom, but also statistical information about the prospective forum. In this column, we examine the outcomes of infringement disputes in federal district court compared with the International Trade Commission (ITC).

Although the number of patent suits filed in the district courts far outpaces the number of §337 investigations, the ITC is growing in popularity for patentees. From 2000 to 2011, the number of §337 investigations increased by 530 per cent. In contrast, the number of patent infringement suits has remained relatively unchanged in that same time period.

The outcomes in ITC proceedings differ in some significant respects from district court litigation. For example, ITC investigations are far less likely to result in settlement than suits in district court. Between 2008 and 2010, about 88 per cent of all patents suits were resolved through settlement. During this period in the ITC, however, settlements were reached in only about 56 per cent of all cases. When a case does survive to trial in district court, the patentee wins 75 per cent of the time. In contrast, patentees win slightly less than half the time when an ITC investigation proceeds to the point of a final determination…

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