But there is one important thing that you can choose: where to litigate the case. Absent jurisdictional concerns—a real problem in some cases—you can generally file your patent lawsuit wherever you like. Your choice can affect the outcome of your case. You may rue or celebrate it when the verdict comes in.
So, what should you do? Your lawyers will tell you tales about this judge and that one. They can speak with seeming authority about the types of patents that hold up (or get knocked down) in pharmaceutical cases. You will probably just stare back at them and wonder whether they know what they're talking about. I know. I've been on the receiving end of those stares.What your lawyers forget: You are a data person. You want to know what actually happens in these different venues. You want to see trends in the reported verdicts. You wouldn't make an important decision about a new product without the best information available. So why make a critical decision about where to file a lawsuit without hard data? No good reason. But more often than not, that's what happens.
It turns out that the District of Delaware stands out as the best place for branded drug manufacturers to litigate (see table).
Over the five years studied, six generic drug cases have reached a verdict in Delaware—all in favor of branded manufacturers. And while our sample size may be too small to draw firm conclusions, there were no reported summary judgments in favor of generics in Delaware from 2002 to 2006.
These data surprise even hardcore patent junkies. A landmark study of patent litigation, by Federal Circuit Judge Kimberly Moore, suggested that Delaware was actually worse than average for patentees, which may be true. But when it comes to pharmaceutical cases, Delaware appears to be the host with the most. Of course, it's possible that only strong cases were brought in Delaware, where the trial calendar is quick and the judicial willingness to try cases is high. Nonetheless, it seems clear that if you are a patentee with a good case, you will get a fair shake in Delaware. And that is saying a lot.
Consider the flipside. Where are the venues that give branded manufacturers consistent problems? Hello New Jersey and Illinois. Over the past five years, courts have granted summary judgment to generic drug makers in six cases in New Jersey and four in Illinois. Two verdicts in Illinois also went in favor of generic manufacturers. If you are a branded manufacturer and have an option, these are two jurisdictions to avoid.