Differences in IP Litigation Court Choices: Patent, Copyright, and Trademark Suits

In his post to Patently-O titled “Disjunction in IP Litigation: Patent Courts are not Copyright Courts”, law professor Dennis Crouch explores the difference in court selection preferences that occurs between the various types of intellectual property suits: patent, copyright, and trademark infringements.

Overall, Crouch finds that the most popular patent infringement jurisdictions are among the least popular jurisdictions for copyright and trademark suits, with patent litigation cases also being more highly concentrated in a smaller number of jurisdictions.

For example, the top three patent jurisdictions handle 59% of patent cases, while the top three copyright and trademark jurisdictions handle 32% and 28%, respectively. Crouch asserts that the reason for this concentration is that NPE cases generally cluster, as they usually involve a single plaintiff filing against multiple defendants before a single court.

Refer below to a table showing the relative frequency of the different types of IP cases handled in various districts, courtesy of LexMachina.

Crouch also finds that appellate courts have a greater disparity in the types of intellectual property suits that they handle. Almost all patent litigation appeals are heard by the Court of Appeals for the Federal Circuit, while the same court handls very few copyright or trademark infringement actions. Conversely, the appellate courts that hear the most copyright and trademark appeals almost never hear patent appeals.

I find that Crouch’s assertions are valid, backed by hard data and analysis. I think that an additional reason for the disparity in court preferences that occurs between the different types of IP litigations may be because the American populace is more likely to be familiar with a product’s copyright or trademark, but not its patents. As a result, juries are more likely to be familiar with or understanding of the specific copyright or trademark suit that a plaintiff files, compared to a patent suit. Plaintiffs will therefore not benefit from an uneducated jury in a copyright or trademark case as compared to a generally complex patent case, resulting in their willingness to select other federal districts in an effort to take advantage of some other local advantages.

I further discuss my thoughts on this topic at the following link:
https://www.youtube.com/watch?v=-RWTHVEJjTo