On May 7, 2010, Nokia Corporation escalated its patent war with Apple, Inc., by filing yet another patent infringement action against Apple in the United States Federal District Court for the Western District of Wisconsin. The complaint filed by Nokia alleges that Apple is violating U.S. Patent Nos. 6,317,083; 6,348,894; 6,373,345; 6,603,431; and 7,558,696, through the importation and sale of certain wireless communication devices and services, such as the Apple iPhone, Apple iPhone 3G, Apple iPhone 3GS, and Apple iPad 3G. But why Wisconsin? Nokia is from Finland and Apple is a California corporation, so what could possibly be the reason for filing suit in Wisconsin?
Mark A. Lemley, William H. Neukom Professor, Stanford Law School and partner in the San Francisco law firm Durie Tangri LLP, may just have the answer. In a new and extremely enlightening study conducted by Professor Lemley he ranks District Courts that have resolved 25 or more patent infringement cases on the merits in the last decade, which yields 33 District Courts. His extensive research provides insights into which District Court has the fastest average time to resolution, the fastest time to trial, the highest patentee win rate and the highest percentage of cases that go to trial. The Western District of Wisconsin scores out quite well, particularly in terms of speed. The average patent litigation is resolved in .56 years, just over 6 months, in the Western District of Wisconsin, which ranks first in terms of time to resolution for patent infringement actions. The Western District of Wisconsin also ranks first in terms of average time to trial, with the average being .67 years, or just 9 months to trial in patent infringement actions. Also, 7.4% of cases proceed to trial, which is third highest.
In fact, the only category where the Western District of Wisconsin does not rank extremely high in terms of a plaintiff choice of venue is the percentage of victories for the patentee. The patentee wins only 24% of patent infringement actions brought in the Western District of Wisconsin, which ranks 28th. According to Lemley, “[w]hat is notable about all these measures is that no district court stands out as the best for plaintiffs or defendants on every measure. Parties that want to forum shop, in other words, must make tradeoffs.”
In terms of the most patentee friendly District Court, can you guess? You will likely be surprised to learn that the popular conception about the Eastern District of Texas is a misconception. The most patentee friendly District Court is the Northern District of Texas, where over 55% of patentees are victorious. The top 5 are:
- Northern District of Texas — 55.1%
- Middle District of Florida — 46.3%
- District of Nevada — 46.2
- District of Delaware — 45.3%
- District of Oregon — 45.2%
Surprisingly the Eastern District of Texas is not even in the top 5! The famously patentee friendly Eastern District of Texas comes in sixth at 40.3%, just ahead of seventh place Eastern District of Missouri at 40%.
Returning to the new Nokia v. Apple patent infringement action, the complaint filed by Nokia explains:
This Court has personal jurisdiction over Apple because Apple has established minimum contacts with the forum. Apple manufactures (directly or indirectly through third party manufacturers) and/or assembles products that are and have been used, offered for sale, sold, and purchased in the Western District of Wisconsin. Apple, directly and/or through its distribution network, places wireless communication devices within the stream of commerce, which stream is directed at this district, with the knowledge and/or understanding that such products will be sold in the Western District of Wisconsin. Therefore, the exercise of jurisdiction over Apple would not offend traditional notions of fair play and substantial justice.
But there is obviously more than meets the eye. To some extent Nokia could have picked pretty much any District Court in the United States and had at least a fair chance to keep the case there. If they were looking for the best District for the patent owner they could have picked some 27 other Districts that would have afforded a statistically more favorable chance, but they just so happened to pick the fastest District Court in the country, a District Court that at least for patent matters is faster than the famous (or infamous depending on your view) Rocket Docket, also known as the Eastern District of Virginia.
It is hard even under the best circumstances to figure out what people, or corporations, are thinking, but it seems safe to conclude that by picking the Western District of Wisconsin Nokia demonstrates they are far more interested in speed than anything else. Perhaps the thought is that speedy handling of the case will lead to some resolution, good or bad, in an expedient manner, thereby allowing Nokia to go on about its business without the uncertainty of a patent war hanging over its head for years, or maybe even a decade. Another possibility, which seems likely if you ask me, is that Nokia picked the fastest District Court in the US for patent matters in an effort to accelerate a global settlement in the escalating battle between themselves and Apple. By forcing at least part of the overall dispute to come to a head with relative speed perhaps a global settlement can be achieved in a reasonable and business friendly time frame.
Whatever the case, there is more than meets the eye about why Nokia picked the Western District of Wisconsin. We have Professor Lemley to thank for shedding light on this matter. If you are a litigator or patent owner trying to figure out where to file a lawsuit spending the time to refer to Professor Lemley’s work would seem well worth your while. I also suspect picking his brain for a few hours might pay dividends long term.
* * * * * * * * * * * * * * * * * * * * * * *
Shortly after I learned about Professor Lemley’s study I sent him a few questions by e-mail regarding his undertaking. His responses appear below.
Quinn: What prompted you to look into this in such depth?
Lemley: Forum shopping is something all patent lawyers spend a lot of time thinking about. My particular interest was piqued by the District of Delaware, which at least a couple of years ago was a common forum choice for declaratory judgment plaintiffs challenging patents. My experience there has been that their rules help patentees far more than accused infringers. And the Stanford IP Litigation Clearinghouse now allowed us to test this systematically.
Quinn: Any thoughts on the Northern District and why it might be so favorable to claimants?
Lemley: I’m not sure. With some of the other districts — D. Nevada, M.D. Fla. — a possible explanation has to do with the sorts of cases that get brought. But N.D. Tex is so close to the Eastern District of Texas, and the technologies there tend to be semiconductors and telecommunications, that I was surprised to see such a high win rate.
Quinn: How shocked were you that the Western District of Wisconsin was an even faster rocket docket than the Rocket Docket itself? What accounts for this?
Western Wisconsin has always had a reputation as a fast court. And the E.D. Tex may be a victim of its own success; so many people have filed patent suits there that it has slowed the process down considerably.
Quinn: What happened to cause the original Rocket Docket (EDVA) to lose favor? I have always thought that claimants would benefit from a rocket docket since they get to decide when to launch and be prepared therefor. Seems like a big strategical advantage, but that doesn’t seem to be a view that is shared by too many patent litigators.
Lemley: The E.D. Va. was a forum of choice for several years in the early 1990s. My sense is that the judges got sick of patent cases clogging their docket, so they began (1) transferring cases out of the district and (2) sending the ones that remained to the Richmond and Norfolk divisions rather than keeping them in Alexandria. Both moves sent the message to potential plaintiffs that you shouldn’t file in the E.D. Va. unless you had a real connection there.