Lemley started with the assumption that plaintiffs frequently look for forums that favor patentees, where cases go to trial (summary judgments strongly tending to favor defendants), and that move cases along quickly. Defendants are likely to want the opposite, a forum that is unlikely to send cases to jury trial, that regularly rules for defendants, and that takes a long time to do both.
He analyzed outcome data from 21,667 patent cases that were resolved at the District Court level. The findings:
- Plaintiff-friendly courts include those in the Middle District of Florida, the District of Delaware, the Eastern District of Virginia, and the Western District of Wisconsin.
- Contrary to common wisdom in some circles, the Eastern District of Texas is not especially hospitable to plaintiffs in patent infringement suits.
- Accused infringers should try to litigate in the Eastern District of Wisconsin, the Southern District of Ohio, or the District of Columbia.
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