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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."
Judges in East Texas are the cheapest?
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there are no less than six amici curiae who have filed briefs arguing both sides of it.
Isn't it customary for an amici curiae brief to argue just one side? Here we have a case where 6 individuals felt the need to brief the court, yet couldn't decide which side they were on.
Or is the summary just incoherent, and they really meant to say "either side".
Give me Classic Slashdot or give me death!
In the article, one lawyer who practices in the district says that people like the district because it is fair to both sides. He wants us to believe that lawyers really want to be fair and would never file in a particular district if it would give them an advantage... ... and then he basically suggests all cases have the same merit and likelyhood of success. He points out that since only 60% of the cases go to the plaintiff in that district, the district isn't really patent-troll friendly. It seems inconceivable to him that a case which might only have a 1% chance of winning would be filed in that district so the odds would be improved.
Marshall Texas should be ashamed of themselves over this -- but they probably aren't.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
It's like saying, "Court may stop politicians from accepting bribes at [insert particular restaurant]."
Not quite the root of the problem, is it?
While I agree with the general precedent that this case is trying to set, I find the case that is attempting to set the precedent is a bit disheartening. Paraphrased FTA, A woman in 2006 wrecked a Golf. The front seat collapsed and crushed her child's skull, killing the child. Her lawyer filed the suit in the 5th district near Marshall, and Volkswagen attempted to have it moved to the district closer to Dallas, since that's where both the plaintiff and defendant reside, as well as the majority of witnesses. In other words, this particular case has nothing to do with patent trolls.
The idea where the plaintiff has the option to choose their venue within the state kind of baffles me in particular. I mean, the whole idea for a lawsuit is that a plaintiff has to prove that a defendant did something wrong. Why is it that the legal system allows a plaintiff to create an advantage such as court choice? Ideally, all judges should view court cases equally, so in my eyes the venue choice should be based on convenience, not preference. Am I missing something?
The legalmetric figure refers to cases that go to trial while the McKool Smith attorney's figure refers to cases that are filed. The two figures do not necessarily contradict, and if taken together imply that the Eastern District of Texas is phenomenally good at eliminating meritless cases prior to trial.
I can further assure you that any partner at McKool Smith is not "clinging to his lifeblood" and that that firm will continue to be one of the most successful firms in representing both plaintiffs and defendants in patent cases filed in venues across the country.
McKool Smith are some of the most skilled attorneys practicing in the field. They are highly respected and represent both plaintiffs and defendants. If patent litigation in another venue becomes popular, it will not affect McKool Smith's business. They'll continue to get as much business as they can bill. I doubt anyone there would misrepresent a material fact to a trade journal read by his colleagues, especially over something as unimportant as this.
What you, and many of the kneejerk anti-patent posters on slashdot fail to understand is why the Eastern District of Texas is a good venue for civil suits. Unlike (say) the Southern Distict of New York, the Eastern District of Texas has very few criminal cases pending at any given time. These cases get priority over civil cases and get to cut in line. The lack of criminal cases gives both plaintiffs and defendants a very clear timetable for trial. This led to the popularity of the Eastern District which led to an experienced court, where reversals on appeal are now less likely (and that's a huge component in patent litigation). It allows patent cases to be quickly resolved on their merits (where quickly is 2-5 years) rather than allowing either party to victimize the other by gaming some broken aspect of the court system.
Rapid resolution is good for both parties, as it reduces uncertainty and legal fees. What kind of investment would a rational business make in additional employees or new technology when some legal sword of Damocles hangs over them for ten years, threatening to take three times their profits over that period at any moment? What incentive would anyone have to respect the patent system when they could draw any patent litigation into a venue already so clogged that the plaintiff had no realistic opportunity to have his day in court. If you think people shouldn't lose their jobs because of patent cases, or that patents stifle innovation, then you should be in favor of a venue of experienced jurists that rapidly resolves patent disputes and reduces patent-related uncertainty from business decisions.
You don't need to look for kids crossing the road or a police car or ambulance coming up behind you on a NASCAR or Formula 1 track. They also have radios in their helmets to help keep them appraised of the track situations as well as to strategize, something that wouldn't be in a consumer car (hook it up to an external microphone or something? Like lots of people out there who can barely keep their vehicles running would spring for that). Completely different set of circumstances. Thanks for playing, though. Helmets would cause a lot more problems than they would solve in the average person's car.
My blog. Good stuff (when I remember to update it). Read it.
Why do you assume the cases dropped were without merit, as opposed to defendants concluding that sharks like McKool will take them for everything they have and deciding to settle? By your own admission, McKool is extremely good at extracting "value" from both sides of the litigation coin. The real problem with "patent-related uncertainty" is the patent system that allows trolls to create uncertainty. McKool is an enabler for these trolls.
You have a point. The biggest problem with a seven year old girl wearing a helmet while driving a car is not the helmet.
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Helmets are only made to protect against a 6 foot fall. It's a trivial form of protection that just happens to be useful in a lot of trivial bike wrecks that would otherwise be fatal. An automobile provides the same measure of protection on it's own and wearing a helmet might just break your neck in a major car wreck. It is also much easier to turn your head around with a helmet in a car.
In this particular case the seat would have killed the girl some other way unless she was wrapped in a better crash couch. That's what the case is about. Car seats are supposed to be able to take six G. It's not supposed to flop back and smooosh the person in the back seat. At some level of violence there's nothing you can do. There was an awful picture of a taxi under a boulder in the recent China quake but I can't find it. It was like a pancake.
Actually, there's a damned good reason to sue there: speed.
I was involved in a case there as a witness. It was 16 months from filing suit to verdict. If it had been in, say, Washington (where defendant corporation resided, as well as the two inventors on the patent in suit) or California (where the corporation behind plaintiff resided), we'd probably still be working through claims construction with a judge with little patent experience--if we could even get on the calendar.
As a programmer who would have preferred to have nothing to do with the whole matter, I'm glad it took place where it would be a speedy process. Sure, I'd have rather had the trial in Seattle, which is a mere ferry ride away from my home, rather than in Texas, which was a long Amtrak ride away, but I'd much rather have it take 16 months rather than several years!
Bullshit. No one wears helmets in cars because they're safe enough that it's unnecessary in PROPERLY DESIGNED cars. The Volvo was defective and killed the girl.
A NYC lawyer blogs. http://www.chuangblog.com/