Forum shopping is widespread in patent litigation because there are clear differences in outcomes among the various federal districts. An accused patent infringer that is sued in a particularly disadvantageous forum can file a motion to transfer to a more convenient forum, but the general consensus is that such motions are difficult to win. Accordingly, accused infringers often file declaratory judgment actions to forum shop. Such actions allow accused infringers to preemptively sue the patent owner in the accused infringer’s preferred forum, and are considered by many to be the best way for accused infringers to play the forum shopping game. Indeed, accused infringers file substantial numbers of declaratory judgment actions every year. This Article presents new evidence confirming that declaratory judgment actions are often filed to forum shop. But the data also demonstrate that declaratory judgment actions are 2.4 times more likely to be transferred than nondeclaratory judgment cases. This suggests that declaratory judgment plaintiffs are often unable to hold onto their chosen forum. Indiscriminate use of declaratory judgment actions to forum shop thus increases unpredictability and wasteful litigation, thereby impeding innovation. The new data presented herein regarding forum shopping by patent litigants give a richer context to the debate over forum shopping in general and serves as a basis for further investigation into its effects on judicial norms and efficiency.
80 Geo. Wash. L. Rev. 1065 (2012).