Mass. boosts status as go-to venue for patent litigation

Patent litigation filings in Massachusetts spiked earlier this year, which some believe may be the result of new local rules implemented in U.S. District Court last fall.

But while lawyers and judges report that the commonwealth has become a more attractive venue since new guidelines were established in November to ensure a predictable timetable for patent litigation cases, Massachusetts still trails other states across the country known as havens for such lawsuits.

U.S. District Court Judge Richard G. Stearns said there was a noticeable — albeit temporary — rise in patent filings in Massachusetts after the rule changes.

“I know immediately after the implementation of the guidelines, the rate of monthly filings doubled,” he said.

According to statistics released by the court, 13 patent cases were filed in February, up from three in November, three in December and four in January (see chart, “Patent filings in Massachusetts”).

However, the number of filings in March, April and May returned to their old levels, which could indicate that the spike in February was a fluke.

Still, lawyers say the new guidelines have boosted the state’s image among attorneys and clients as a destination for IP litigation.

Steven M. Bauer, who co-chairs the patent litigation practice group at Proskauer Rose in Boston, said he decided to file a case in U.S. District Court in Boston after the rules changed. “The [revised] rules were a factor,” he said.

Likewise, Alan D. Smith, a patent litigator at Fish & Richardson in Boston, said he now “recommends Massachusetts more to clients, and clients are considering it more.” Smith added that one of his clients is currently considering filing here as a result of the new guidelines. “It’s more desirable,” he said.

The Boston lawyer who spearheaded the movement to put the guidelines in place, Lee C. Bromberg, said he, too, has noticed more of a buzz about the Massachusetts court in relation to patent cases.

“The discussion is, ‘Well, maybe Massachusetts isn’t a bad place to bring this one,’” said Bromberg, a partner at Bromberg & Sunstein. “You would never have heard that a while back.”

‘Faster than Texas’

Trouble in the infamous patent “rocket docket” of the Eastern District of Texas may also be making Massachusetts a more attractive patent litigation venue, some lawyers suggest.
In recent years, filings have skyrocketed in Texas, which is known for quickly moving cases to trial and making it difficult to transfer matters to other venues, thereby giving an advantage to individuals suing companies.

But in the past half-year, patent lawyers say, new appellate rulings have strengthened the ability of litigants to transfer cases out of Texas, and the court has accumulated such a sizeable backlog that there is now a significant delay before cases reach trial.
Statistics from the U.S. Case/Party Index show that there were 100 fewer patent cases filed in Texas in between June 1, 2008, and May 31, 2009, than during that same time period one year earlier.

According to Fish & Richardson’s Smith, “If you file in Texas, you can get a trial date three years from the filing. It used to be a little more than a year, until the forum became so popular.”

Smith said that Massachusetts, which has a relatively light caseload per judge, has an
opportunity to take the place of the Texas court.

“Now, in Massachusetts, I know I’ll get a claim construction hearing in a year,” he said. “Massachusetts will probably now be faster than the Eastern District of Texas because of these local rules. That’s why it makes Massachusetts more attractive.”

Bromberg agreed that the changes in Texas have created “further incentive” to bring cases to Massachusetts.

But if the commonwealth is poised to be the next Eastern District of Texas, it is not there yet. No one interviewed for this story had heard of a patent case migrating from Texas to Massachusetts.

‘Skeptical’ juries

In 2008, the number of patent cases in Massachusetts was dwarfed by those in the plaintiff-friendly patent venues of northern California, Delaware and the Eastern District of Texas (see graph on page 7, “Patent filings by state”).

That suggests that while patent filings may be on the rise in Massachusetts, the state has a long way to go before it rivals the most popular patent venues in the country.

Only 56 patent cases were filed in Massachusetts between June 2008 and May 2009, markedly fewer than the three-figure annual filings in the other districts.

“I think what holds people back from Boston is that it’s not yet clear how all the judges will follow these rules,” explained Bauer, of Proskauer Rose. “And until people start seeing real experiences, people are going to be a little bit resistant.”

Bauer said that while Texas may be less attractive than in years past, juries in that state are still known for being “plaintiff friendly” in patent cases, while Massachusetts jurors have a reputation for being more skeptical.

“The New England jury pool is considered more pro-defendant than many jury pools,” Bauer said. “The typical New England skeptical juror doesn’t give the plaintiff the same benefits that a plaintiff would see elsewhere. So where plaintiffs are making the decision about where to file, they’re looking for venues that have jury pools that are considered to be plaintiff-friendly.”

Rather than attracting individuals who want to sue companies for patent infringement, Bauer said, Massachusetts’ predictable timelines and sophisticated judges will draw businesses that are suing other established businesses.

“If it’s a business dispute between companies, [the new guidelines] will make Boston more attractive,” Bauer predicted. “I think people are looking for the judge to help the process along.”

That means Massachusetts, which has a low caseload per judge but also a reputation for careful jury deliberations, will probably never become a “rocket docket,” Bromberg said.
“Maybe it’s a little slower, but perhaps you get a more thorough airing of the issues. We have room to handle these cases, and when they do come to trial you get full dress treatment,” he said.

Bromberg added that judges here are unlikely to agree to three months for a trial, “but probably four weeks in the appropriate case would be tolerated, whereas in some places I have heard the judge say, ‘OK, you have five days to do this.’”

Meanwhile, Stearns said he is optimistic that Massachusetts will serve as a model for other jurisdictions that are crafting rules for a thoughtful, fair model for patent litigation.

“I’m now sitting occasionally as a judge in the Southern District [of New York], and I have talked to a number of very experienced patent lawyers who were suddenly very interested,” he said. “There’s talk of trying to urge the court there to adopt something similar.”