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5th Circuit May Stop Patent Troll "Forum Shopping"
I Don't Believe in Imaginary Property writes "Why is a 5th Circuit product liability case getting interest from lawyers all over the country? Because it might put an end to forum shopping by 'non practicing entities' (patent trolls) who prefer to file in the Eastern District of Texas, no matter how little relevance that forum has to their case. Thanks to the rules involving 28 U.S.C. 1404(a) motions and patent cases, people who get sued in Marshall, Texas usually can't get the case transferred elsewhere, even though that forum is seen as unreasonably favorable for patent plaintiffs. But, if the panel of judges in In Re: Volkswagen rules the way some anticipate, that could all change, and there are no less than six amici curiae who have filed briefs arguing both sides of it."
Because you don't understand the difference between venue and jurisdiction? Jurisdiction is a big deal. Venue, by comparison, is not. Under our rules, unless there's good cause, venue is plaintiff's choice (if there is more than one proper venue.) It's not that judges are cranky, but if venue is appropriate in more than one place, it's plaintiff's right.
When in doubt, parenthesize. At the very least it will let some poor schmuck bounce on the % key in vi. (Larry Wall)
I'm wearing my amici briefs right now!
Recursive: Adj. See Recursive.
Yes, surely the AIPLA prefers the judges and juries in that venue because of their fair and equitable methods that give defendants a fair chance, and not at all because if defendants started winning IP-related suits the AIPLA would be largely out of a job. the two articles in TFS contradict one another....
"Indeed, patent plaintiffs whose cases go to trial in Marshall win 88 percent of the time, according to research firm Legalmetric, compared with 68 percent nationwide."
http://www.technologyreview.com/Infotech/16280/page2/
vs
""We thought it was chock-full of errors," Sam Baxter, a partner in Dallas-based McKool Smith who is lead counsel for the ad hoc committee, says of the AIPLA amicus brief. Baxter says Eastern District judges regularly grant Â1404(a) transfer motions. In 2007, plaintiff-patent holders won 57 percent of the suits they filed in the Eastern District, which is below the national average win rate for patent holders, he says."
http://www.law.com/jsp/article.jsp?id=1202421640751
so who do you believe? legalmetric, who says 88% of patent 'owners' win in marshal, or a lawyer who makes his living in Marshall Texas, saying that only 57% win there?
I think, that given the fact that we all know a tank full of lawyers would win over a tank full of sharks, even if we gave the sharks lasers, that I'd prefer to trust legalmetrics numbers, not some lawyer desperately clinging to his lifeblood, winning cases for patent trolls in east Texas..
BTW, the first link was indirect, you had to follow the blog's link that was linked second in the fine summary..
https://www.gnu.org/philosophy/free-sw.html
There is a big difference between a case that is filed and a case that goes to trial. So both statistics could be right. Plaintiffs could win 57% of cases filed AND 88% of cases that go to trial.
Many cases never go to trial. They are resolved either through a 12(b)(6) motion (motion to dismiss for failure to state a claim upon which relief can be granted) or through summary judgment.
OT Note: 12(b)(6) motions used to be called demurrer motions. The name was changed because non attorneys had no idea what a demurrer motion was. But the name was changed to "motion to dismiss for failure to state a claim upon which relief can be granted." The phrase is way too large, and way too unwieldy, so everyone just refers to it as the 12(b)(6) motion, and non attorneys have no idea what that means, so we're back where we started, except with the lame 12(b)(6) term instead of the (comparably awesome) demurrer term.
IANAL, but I am a (apparently whiny) law student.
If you had super powers, would you use them for good, or for awesome?
> Because you don't understand the difference between venue and jurisdiction?
You should explain it to them if you're going to say that...
Jurisdiction: Whether a given court has the POWER to hear a case. You can't take a patent case before a family court judge. You have to be in the right kind of court to begin with.
Venue: What place the case is heard in (because there's more than one family court out there). This should ordinarily be a matter of convenience for all parties. In other words, there's no damn reason to sue everyone in the Eastern District of Texas when none of the parties have any business there. That said, there are good reasons avoid shuffling a case around the country for no reason, too, and to want to stop a lot of bickering over which court is more convenient for whom.
The reason patent trolls love the Eastern District of Texas is because cases take very little time and are seen to favor patent plaintiffs. Although the article quotes a lower than average win percentage, it doesn't say if that takes settlements into account. In general, it's unlikely that you'll escape from EDT, even if you have no offices there and the plaintiff doesn't, either.
Naturally, the people (lawyers) in Marshall are upset over this because they're raking in the cash. They have a nice, new hotel there, plenty of law offices, etc. It's a boon to the town, but it sucks for anyone sick of fighting off patent trolls.