The Senate is still working on patent reform, despite the House approving it months ago. However, you can be sure that patent trolls and their lawyers have been watching the space carefully. One of the proposed amendments on the Senate side would concern fee shifting
-- making the losing party have to pay the winning party's legal bills -- and in the amendment it says it would go into effect, on April 24, 2014. Even though the bill has not yet gone anywhere and the amendment may not make it, it would appear that trolls and their lawyers (often one and the same) realized that if they wanted to avoid fee shifting, they'd better get filing
. And, boy, did they ever file a lot of patent infringement cases on Wednesday April 23rd: 190 cases. In case you're wondering, the day before 8 patent cases were filed.
But just that number alone might not give you enough perspective to understand this mad rush to the courts (or, well, as we'll see, one court in particular) to file patent lawsuits. The good folks over at Lex Machina have put together some data
to show just how noteworthy all those patent lawsuit filings are. Here are the daily patent lawsuit filings for the first four months of 2014. Notice any particular outlier?
Of course, trolls have known that fee shifting was a possibility for a while now, so it's not like they suddenly realized it might be good to get lawsuits in just under the wire. So Lex Machina also went back a few years and looked at the weekly filings of patent lawsuits. You might notice a bit of a trend leading up to the massive outlier:
And, with so many filings, they should be distributed widely around the country, right? It's not like trolls play a silly jurisdiction shopping game in which they all try to file in one random obscure court in eastern Texas
, right? Well, let's look at where most of those 190 cases were filed:
Oh, and if you're wondering why the district court in Delaware seems to be fairly popular too, I'm guessing some research by Mark Lemley
may have something to do with that. He compared patent cases in various districts and found that, for cases that actually go to trial, Delaware had a higher win rate than East Texas. Oh, and also
that a far higher percentage of patent cases actually go to trial in Delaware as well. East Texas still gets the majority of cases (by far), but Delaware has been the alternative favorite for trolls for quite some time now.
Of course, this also shows that trolls know they have questionable claims and that they fear fee shifting mightily. It's why any patent reform bill needs strong fee shifting provisions to deal with such bogus lawsuits.