Back in May, I wrote about the Supreme Court’s TC Heartland decision on patent venue, where the permissive, long-standing Federal Circuit approach to the issue was rejected in favor of a much more restrictive approach. In that column, I made the point that the decision could mean “we are also likely to see an uptick in patent cases filed where the defendant is incorporated” as patent owners sought to avoid venue-based disruptions to their cases in light of TC Heartland making patent venue more restrictive. Now that a few months have passed since that decision, how has my prediction held up? Thanks to information provided by the legal analytics firm Lex Machina, it is clear that my prediction was a correct one. More importantly, the data since TC Heartland makes plain that the decision has had an outsized influence on patent practice, with a measurable shift in where cases are being brought.

As Lex Machina’s blog post puts it — “the change is stark”. Prior to TC Heartland, “twice as many cases were filed in E.D. Tex. as D. Del.; but afterwards, it’s less than half.” Put another way, even though the number of patent cases filed in other districts remained steady, there was a dramatic drop in cases filed in East Texas. More filings in Delaware — where many patent defendants are incorporated, and thus subject to venue even under TC Heartland — made up some, but not all of, the slack.

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