The Judicial Panel on Multidistrict Litigation: Now a Strengthened Traffic Cop for Patent Venue

Article excerpt

I. Introduction 497

II. Alternative Informal Coordination Mechanisms 503

III. Structure and Operation of the Judicial Panel 506

A. Powers of the Panel. 506

B. Overview of Panel Procedure 510

IV. Impact on Patent Litigation 514

A. General Observations on Trends 514

B. Specific Observations on JPML Rulings 518

1. Sending to Where the Largest Numbers of Cases Are

Pending 518

2. Judicial Workload as a Factor 519

3. Draining Cases from Eastern Texas? 519

4. First-Filed Forum Preference 519

V. Conclusion 520

VI. Appendix 521

I. Introduction

The Judicial Panel on Multidistrict Litigation, a group of seven United States circuit and district judges chosen for extra duty by the Chief Justice, is the highest-level arbiter of venue where related civil actions are pending in more than one district. Its task is to seek both judicial efficiency and overall convenience for the various parties involved. Its recent decisions show a marked emphasis on the former.

The panel's role is often misunderstood. Some of the language in the panel's governing statute may, if read alone, convey the impression that when the panel transfers a case to another district, the transfer is made merely to manage discovery, after which the case will return to its original district where the more serious decisions will be made.1 However, the reality is quite different. Once a transfer is ordered by the panel, a case very rarely comes back to its original district for trial. We shall discuss herein why that is so. The transferee judge has far more extensive powers than might be apparent at first blush. That judge is, de facto, the end of the road. This is especially seen in patent infringement litigation, where since the creation of the panel in 1968 we find, out of the many hundreds of panel-transferred patent cases, only one case that was later remanded and tried in the originating district.2

Patent venue has been a hot topic in recent years. Legislative proposals to restrict patent venue to districts where the defendant's activities were centered have been introduced and debated in

Congress during the past six years, but to no avail. With somewhat more success, the courts took up the patent venue issue in the form of mandamus proceedings to compel district judges to transfer cases out of patent-friendly districts to districts that had more defendant contacts. Some writs were granted, as will be further discussed in Part IV. During the time of these legislative and judicial events, but seemingly quite apart from them, the Judicial Panel on Multidistrict Litigation quietly became an important authority in patent venue determinations. Its role is restricted to cases where the same patent is allegedly infringed, or is challenged as invalid, in actions pending in more than one district. Such situations have increased in number due to 2011 patent legislation limiting the joinder of non-cooperating accused infringers in a single action.4 The mere fact that several unrelated entities were accused of infringing the same patent will not suffice for joining them in a single action. Suing them in multiple actions tends to spread the cases geographically, either because the plaintiff chose multiple districts in the first instance or because some of the actions were now more readily transferred on convenience grounds by the courts in which they were initially filed. As a result, the panel's patent business tripled in 2012 as compared with the average of the three prior years. In 2012, the panel decided the proper forum settings for eighty-eight patent cases.5 While this is not a huge portion of the more than 5,000 patent infringement cases filed in 2012,6 it is substantial and growing. We shall discuss how and why the panel's role has developed that way.

In recent years, much of the focus in the patent venue-restricting debates has centered on so-called "non-practicing entities," which have constituted an increasing proportion of patent-owner plaintiffs suing for infringement. …