Of Fire Ants and Claim Construction: An Empirical Study of the Meteoric Rise of the Eastern District of Texas as a Preeminent Forum for Patent Litigation

ABSTRACT Forum shopping by patent litigants is nothing new. However, in recent years, there has been an increase in forum shopping by patentee plaintiffs. Because of this forum shopping phenomenon, the Eastern District of Texas, a technological backwater, is on pace to become the leading patent docket in the United States. This Article empirically analyzes the reasons for the popularity of the Eastern District among patentee plaintiffs and considers a number of possible legislative solutions to the problem of forum shopping gone awry. TABLE OF CONTENTS INTRODUCTION I. FORUM SHOPPING A. GENERAL BACKGROUND B. PATENT LITIGATION 1. Professor Moore's Study (1995-1999) 2. Recent Trends in Patent Forum Shopping (2002-2006) II. THE EASTERN DISTRICT OF TEXAS A. GENERAL BACKGROUND B. PLAINTIFF'S PERSPECTIVE 1. Knowledgeable Judges 2. Special Patent Rules 3. Plaintiff-friendly Juries C. DEFENDANT'S PERSPECTIVE 1. Problems with the Judges 2. Problems with the Patent Rules 3. Problems with the Juries III. PROBLEMS WITH FORUM SHOPPING A. PROBLEMS WITH ACCURACY B. PROBLEMS WITH FAIRNESS C. PROBLEMS WITH EFFICIENCY IV. PROPOSALS FOR PATENT ADJUDICATION REFORM A. PATENT VENUE REFORM B. UNIFORM PROCEDURAL RULES C. SPECIALIZED PATENT JUDGES D. SPECIALIZED PATENT COURT E. PROFESSIONAL JURIES CONCLUSION INTRODUCTION It has been called a "lawyer's dream," (1) a "plaintiff's best bet," (2) a "haven for patent pirates," (3) a "hotbed for patent trolls," (4) and even a "renegade jurisdiction." (5) One local attorney described it as "a cross between 'Hee Haw' and 'Twin Peaks.'" (6) Welcome to Marshall, Texas, a tranquil town of 25,000 not far from the Louisiana border, about 150 miles east of Dallas. Until recently, this self-proclaimed Pottery Capital of the World was known mainly for its annual Fire Ant Festival and as the former home of George Foreman and Lady Bird Johnson. In the past few years, however, this former railroad hub named after the fourth Chief Justice of the United States, John Marshall, transformed itself into a veritable juggernaut of national and international high-tech patent litigation. It took only five years for Marshall to grow from a tiny speck on the national litigation map to the second-busiest patent docket in the country, ahead of New York, Chicago, Washington and San Francisco and closely trailing Los Angeles, the perennial leader of IP litigation. If it maintains its current growth rate, the Eastern District of Texas, where Marshall is located, will likely surpass the Central District of California in 2007 to become the new national leader in patent litigation. This phenomenon has not gone unnoticed; commentators have recognized the curious disconnect between Marshall's utterly unremarkable outward appearance and the important role it plays in shaping the future of global technology. (7) Despite the wealth of journalistic accounts, one is hard pressed to find a thorough, systematic study of what has led to Marshall's rise in the patent litigation arena and whether this rise is good or bad for the patent system. With this Article, I attempt to fill this void. In Part I, I discuss forum shopping, generally and specifically in the context of patent litigation. I review past statistical studies which seek to identify the reasons behind forum shopping in patent litigation, and I then present my own empirical findings, highlighting new trends in forum shopping among patent litigators. In Part II, I discuss patent litigation in the Eastern District of Texas, presenting both plaintiffs' and defendants' perspectives on the current situation. In Part III, I highlight common problems caused by forum shopping, and in Part IV, I discuss possible alternatives to the U.S. system of patent adjudication and various reform proposals put forth in recent years. …