Jeanne Fromer recently posted an important new piece on SSRN entitled Patentography (forthcoming NYU Law Review). The piece tackles the problematic structure and quality of patent litigation, notably the difficulties that generalist district court judges have tackling technical issues, the prevalence of forum shopping, and the Federal Circuit’s failure to defer to district courts’ factual findings. Fromer offers a fascinating strategy for addressing these concerns — by taking account of the geography of patents and thus making patent suits proper only in the district for the principal place of business of any of the defendants in a case. Constricting venue would cluster patent cases of particular technologies or industries in particular districts, permitting judges to gain proficiency in the technical issues attendant to them. There’s more to this piece than my summary captures, so download it! Here is the abstract:
This Article relies on theory and empirical data to propose that the structure and quality of patent litigation, currently riddled with shortcomings, can be improved by harnessing patentography – the geography of patents. There are three principal concerns with patent litigation’s institutional structure: widespread forum shopping in district court patent cases, district courts’ typically poor factfinding and lawmaking in these cases, and insufficient deference by the Federal Circuit – the court hearing nearly all patent appeals – to district courts’ factual findings. Exploiting patentography by restricting patent venue in a case to the principal place of business of one of its defendants would help repair each problem. It would clamp down on forum shopping. Contrary to conventional wisdom, it would also improve district courts’ patent decisionmaking. As industries tend to cluster stably in discrete geographic areas, my proposed rule would tend to cluster patent cases by technology in particular districts, such as software cases in the Northern District of California and pharmaceutical cases in the District of New Jersey. Clustering together large numbers of an industry’s patent cases in a limited number of district courts would develop the courts’ proficiencies in patent law and in the underlying industry-specific facts critical to sound legal determinations. Under my proposal, this clustering would occur in districts in which judges and juries already tend to have background industry knowledge, given the associated industry cluster. An empirical review of patent cases filed in district courts in 2005 confirms that harnessing patentography as I propose would intensify patent-litigation clusters. Finally, improving district courts’ decisionmaking ought to cause the Federal Circuit to defer more appropriately to district courts’ factual findings.