A Blog About Intellectual Property Litigation and the District of Delaware


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This time last year, we wrote about a decision from Chief Judge Connolly denying a motion to transfer from D. Del. to the Central District of California. We didn't write about the "court congestion" factor because there wasn't much to say—the court simply noted that "[b]oth courts are among the busiest in the country" and concluded that the factor was neutral.

Late last week, however, Chief Judge Connolly granted a motion to transfer from D. Del. to C.D. Cal. Among other reasons, he concluded that "[g]iven the districts' relative caseloads, this factor favors transfer."

After noting that D. Del. has significantly more weighted filings per judge than C.D. Cal. (942 compared to 691), he explained his view "that the weighted filing figures do not always accurately reflect the burdens imposed on district courts by patent cases, which are especially complex and time-consuming to adjudicate."

According to data aggregated by the LexisNexis Litigation Analytics tool, as of October 2, 2021, there were 996 open patent cases in the District of Delaware as compared to 233 open patent cases in the Central District of California. The disparity in the courts' burdens is compounded by the fact that the District of Delaware currently has only four sitting district judges, while the Central District of California has thirty sitting district judges, only eight of whom have taken senior status.

The transfer scorecard in this case was very lopsided (with six factors favoring transfer and only one weighing against it), so it's unclear how heavily the congestion factor played into the analysis. It will be interesting to watch going forward, though, since most districts are nowhere close to Delaware's number of open patent cases per judge (and as we've noted in the past, D. Del. hasn't added a district judgeship since 1984).

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