Court Competition for Patent Cases

Abstract

The traditional academic explanation for forum shopping is simple: litigants prefer to file cases in courts that offer some substantial advantage — either legal or procedural — over all other courts. But the traditional explanation fails to account for competition for litigants among courts. This Article suggests that forum shopping in patent law is driven in part by the creation of procedural and administrative distinctions among courts that are designed to attract, or in some cases to repel, patent litigants.

This Article makes two primary contributions to the literature, one theoretical and one normative. First, it theorizes that judicial competition for litigants is an inherent drawback of specialized adjudication, thus connecting the theoretical scholarship on specialized courts (primarily the literature on bankruptcy law's experience with court competition) with the abundant literature on forum shopping. Normatively, this Article examines three possible modifications to patent case assignment rules that could be used — possibly in conjunction with venue restrictions — to reduce both forum shopping and court competition. First, Congress could require district courts to randomize their assignment procedures. Second, patent cases could be assigned randomly to a subset of district court judges, similar to the current Patent Pilot Program (PPP). Third, patent cases could be assigned by a judicial panel, similar to the one used for Multi-District Litigation (MDL). Ultimately, while the more radical case assignment procedures would reduce forum shopping and court competition for patent cases, they would also increase litigation costs for all patent plaintiffs — not just forum-shopping plaintiffs. Thus, this Article supports a more modest fix: a randomization requirement for federal district courts.

Keywords: patent law, federal circuit, specialized courts, forum shopping, federal courts