Fifth Circuit Decision on Transfer Standard May Impact Patent Cases

The Fifth Circuit recently issued a decision that may have implications for patent cases filed in the Eastern District of Texas. It has been a common belief among defendants sued in the Eastern District that motions for transfer are rarely granted. The statistics tend to support this belief. Over the past 17 years, the national success rate for motions to transfer has been 47.7%. In the Eastern District of Texas, motions to transfer cases to another district have been granted only 33.1% of the time over the same period. This makes the Eastern District the second most difficult district in the nation from which to get a case transferred.

This perceived reluctance to transfer cases has become a particular concern to defendants in patent infringement actions. It is well known that the Eastern District of Texas is a center for patent litigation—according to the most recent data, 368 patent cases were filed in 2007 in the district, making it the most active district in the country for patent litigation. Defendants in many of these cases have little or no direct contact with the Eastern District and, thus, often seek to transfer the case to another district pursuant to 28 U.S.C. § 1404. In a recent en banc decision, the Fifth Circuit may have made it easier for defendants filing such motions to be successful.

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