We previously reported on the early impact of the Supreme Court’s decision in TC Heartland based on the first few weeks of new filings. (For a summary of the TC Heartland opinion and its implications, click here.) It has now been one month, and based on the filing data for the month since TC Heartland as well as historical data since the beginning of 2016, we now have a better sense of how things have changed and how things may look in the future. Using data obtained from Docket Navigator, we compared filings in the month since TC Heartland came down on May 22 with filings earlier this year and also for all of 2016.
With the caveat that we are still looking at a very small sample size, some trends are becoming apparent. The ranking of the top 10 jurisdictions based on percentage of patent cases filed has changed somewhat in the days post-TC Heartland versus the year and a half preceding the decision. The top two jurisdictions have switched places, with Delaware taking a solid lead, close to tripling its percentage of filings from 2016. Meanwhile, Texas has fallen to around half its percentage of filings. Other courts that have seen large increases in their percentage of cases include the Northern District of California and the Northern District of Illinois:
|District||Post-TC Heartland % (May 22 through June 21, 2017)||2017 Pre-TC Heartland Rank (January 1 – May 21, 2017)||2017 Pre-TC Heartland % (January 1 – May 21, 2017)||2016 Rank||2016 %|
|S.D. New York||2.5%||11||1.4%||8||2.2%|
Another trend is a drop in the average daily number of new patent cases. For 2016 and 2017 pre-TC Heartland, there were approximately 16 cases filed each business day. Since TC Heartland, that number has trended down to just over 12 cases each day. It is still too early to tell whether this is a long-term trend.
It is worth noting that even though the number of new cases has fallen nationally, in certain jurisdictions there has been a clear uptick. For example, the daily average number of patent filings has increased approximately 50% from the first half of the year in both Delaware and the Northern District of California. However, the Eastern District of Texas remains the biggest loser in terms of filings, losing roughly two-thirds of its pre-TC Heartland filings. Still, compared to the number of cases being filed in the Eastern District of Texas just 15 years ago (when it wasn’t even the most popular venue in Texas), it still remains a popular venue—when available.