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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."
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Slashdot Short Circuit May Stop Troll "First Posting"
Judges in East Texas are the cheapest?
Prediction: The real iPhone killer is going to be sex robots from Japan. Think about it.
1. Patent trolls no longer allowed to forum shop to Marshall, TX.
2. Patent trolls, realizing this, all move to Marshall, TX so they may continue such practice.
3. Marshall has a massive upsurge in interest to the area with all these "big name businesses" moving in.
4. Marshall expands its city services (etc, etc) to accommodate.
5. Patent troll companies that moved to Marshall prove to be shells, not contributing to the city much at all.
6. Marshall collapses under new bogus businesses.
7. ???
8. Profit!
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.
"It could hurt lawyers all over the state," especially in Dallas, which has a large contingent of firms that practice in the Eastern District, says Michael C. Smith, a partner in the Marshall office of Siebman Reynolds Burg Phillips & Smith who represents the plaintiffs. Lawyers making less money? Say it aint so! Now that would be the real tragedy here.
Quite an experience to live in fear, isn't it? That's what it is to be a slave.
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)
No. It will just make the trolling take longer. One of the advantages with the rocket docket was getting wholly specious claims dismissed expediently.
When in doubt, parenthesize. At the very least it will let some poor schmuck bounce on the % key in vi. (Larry Wall)
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."
Back in the '70s when I was first trying to patent something (that it turned out had been invented and patented back when I was 6 years old), I heard that similar forum shopping was done by those trying to break patents.
Seems there was a federal judge in Chicago who thought everything was obvious (rather than "obvious only after it's pointed out and THEN you go 'Oh, of course!'"). So people trying to break patents would try to file their suits there, in the hope of getting that judge. Worst case was they got one of the other judges and actually had to prove their case.
Don't know if this was actually true. And even if true that judge would either be retired or nicknamed Lazarus by now. But I thought I'd share.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
It's like saying, "Court may stop politicians from accepting bribes at [insert particular restaurant]."
Not quite the root of the problem, is it?
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
"It could hurt lawyers all over the state," especially in Dallas, which has a large contingent of firms that practice in the Eastern District, says Michael C. Smith, a partner in the Marshall office of Siebman Reynolds Burg Phillips & Smith who represents the plaintiffs. Welcome to the land of "competition", you $400/hr crybabies!
The Electronic Frontier Foundation (EFF), Software Freedom Law Center (SFLC), and other key "patent busters" need to write open letters in support of this action. We need visibility here.
Use my userscript to add story images to Slashdot. There's no going back.
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?
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.
between you and the AC, I'm going to take this to mean that the 57% statistic ignores the volume of 'cases settled out of court' while the 88% statistic is based on claims that go all the way to a jury trial.
just for play here, if we're dealing with 400 cases a year (close to the real number but rounded to the nearest cuz i hate math)
57% of 400 is 228 cases won, with 172 cases that 'technically' are dropped, or are lost..
to get to the 88% number from 228 then only 27 cases can be lost, meaning that 145 cases were settled out of court.
unless any form of 'dismissal' isn't counted as a lost trial... for statistical purposes... but either way cases settled out of court aren't won or lost in trials anymore than cases that are dismissed...
https://www.gnu.org/philosophy/free-sw.html
> 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.
The ink has just about dried on my "How to be a Texas patent troll" patent.
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.
"The two figures do not necessarily contradict, and if taken together imply that the Eastern District of Texas is phenomenally good at eliminating merit less cases prior to trial."
the only part of this I'm going to take a point with is that the difference in percentages means the difference (number of filed cases that never go to trial) does not mean they're super efficient at picking out merit less claims.
if you're faced with the option of a private settlement where you agree to pay say $2 per processor you ship (and you shipped say 1 million processors) rather than seeing perhaps a settlement as large as $6 million dollars... well, settling out of court is obviously the way to go.
if merit less claims are rooted out as effectively as in other venues, then the difference is from the sheer number of companies that have learned 'best to make a deal with the devil who bought out those patents and makes no electronics' than to face a jury awarded settlement.
electronic and computer companies in the past made agreements with companies holding patents against them, don't sue me and i won't sue you.
but the vast majority of patent lawsuits are being put forward by companies that make no computer or electronic devices, they are companies that specialize in getting patents for as many technical innovations as they can possible think of before anyone else can patent them.... it's like the MC mansion phenomenon.. every smart electrical engineer who couldn't land a nice job realized there was an easier way to make a million dollars a year in income, patent the best ideas they can come up with for technological inventions, and never make a single product and live entirely off suing companies that infringe on your patents..
I've looked into this, people in east Texas don't give a damn about large corporations, they hate em, anyone who 'sticks it to the man' is a++ in their book, that's why that venue is hated by any corporation involved in technology. it's not because there are so few crimes, it's because the juries always side with the person who bought or came up with a patent, even if that company is a shell corporation that does nothing but buy and list new patents.
It's perfectly legal to apply for patents and make no devices yourself, and this is how smart tech guys who can't get honest jobs, or pick the wrong startup and moan over their poverty if they don't do something... the problem is, these people once they hit it big, have no reason to do anything else, but patent troll, real jobs don't pay in the $12,000,000 'jury award' for nintendo vilating your video game controller patents with it's 'wii' controller, even though the technical concepts for most of what is needed to make new 'breakthrough' controllers was at least somewhat thought out 30 years ago... if nobody patented all the slight variations... and they actually wound up implementing something close to a slight variation witt 'patent pending' well... $$$ for the parasite to society who produces nothing, but legally binding patents.
and if taken together imply that the Eastern District of Texas is phenomenally good at eliminating meritless cases prior to trial.
It could also mean that knowing 88% of the cases heard are won by the plaintiff, you cut your losses and settle as you will more than likely lose.
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.
More importantly, what is the national average win rate for cases HEARD? That would indicate whether the court is impartial or not.
BM3
Switch the Forum Shopping case to the Sixth Circuit Court!
Have gnu, will travel.
As far as all the people saying it's patent trolling, you need to know that there are jurisdictional considerations as to whether it's a patent law case, or merely another type of case the contains a patent law counterclaim. If a party brings a suit on a non patent basis and the defendant's counterclaim asserts a patent law based claim, then this suit is not 'arising under' the patent laws and can only be appealed to the Regional circuit court (i.e. the 5th Cir. in this case) as opposed to the U.S. Court of Appeals for the Federal Circuit. The CAFC is the court that matters for patent law. Since it's being appealed to 5th Cir. it's not an 'arising under' the patent law case, so stop whining about patent trolling. Even the summary says it's a product liability case.
While it might affect venue in the future, it's not that this case was specifically about patent trolling and forum shopping.
There's nothing convenient about East Texas for anyone but people who live in East Texas and patent trolls. It's not your right to force everyone to your pet judge until the Feds finally put him in jail. The language used to describe this form of fraud is less important than the fraud itself.
Intellectual property was the desert property of the twenth century.
a. smells like some nice pr spin from someone at mckool smith. way to not identify yourself.
b. your rational about why these cases "belong" in EDT is pure bs. IANAL, and IANA Law Student. But it seems to me that ANY judge who has the knowledge to be presiding over an IP case would have an entirely different background and knowledge then a judge presiding over a criminal case. What the heck do criminal cases have to do with anything? Sounds to me like a problem with the process to expediate things for the wealthy.
I can't begin to imagine that a judge who generally rules over cases of criminal nature like murder, misdemeanors, theft, etc etc could even begin to be expected to be remotely compentent in his understand of the kind of things being argued about.
It'd be like tossing an english major into the middle of a mathematical debate and asking him to ascertain whos right. He's going to pick whoever can suck up and dumb it down enough for him to comprehend some false paradigm from which he can judge. If you ask me thats the broken aspect of the court system that you get to cut in line and take cases to places that have no relevance to said case other than a record for being favorable to your side.
Brings to mind a case posted on slashdot earlier this year where a judge had the balls in court to ask "what's the internet" and he was sitting ona case where the internet was central to the whole IP debate. If you ask me thats whats broken, that judge who doesn't know crap about topics the patent is about is on said case and either side has no means by which to challenge his adaquecy to preside over the case based on such.
Not to say that he's an inadequate judge, or a bad person, or anything; just that he doesn't know anything about X and they should probably find a judge who DOES. granted this also means that lots of the "good ole boys" may find themselves useless without more continuing education but hey, frees up jobs for rising generation. I think and always will that the concept of tenure be it for teachers or judges or anywhere is absurd.
"Jazz isn't dead, it just smells funny" ~Frank Zappa
EdelFactor
no it wouldn't; you can't judge partiality based upon comparing the outcome of the cases to average rates elsewhere. well you can compare them; you just dont end up with anything meaningful about partiality.
It doesnt tell you whether or not the cases that won or lost should have won or lost, would have elsewhere, had merit, were tried improperly, etc.
Thats like showing me two products, asking me to choose one and then concluding that because I picked the first shown over the second more often that I was biased to pick the first one... how do you know the first one just wasnt better than the second? you don't, to get a significant statistic you would have to account for ordering and demonstrate control, and that the ordering alone (or in your case the venue ALONE) was what was causing the difference in outcomes.
Do i think based on the article that the area is impartial? yes. But your point can do nothing to either prove or disprove any (im)partiality at all.
"Jazz isn't dead, it just smells funny" ~Frank Zappa
EdelFactor
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.
and if taken together imply that the Eastern District of Texas is phenomenally good at eliminating meritless cases prior to trial.
You seem quite happy accepting statistics and using phrases like "phenomenally good" to bolster your argument without worrying about "different products" but do not want to accept measurement of performance by the judges themselves.
Thats like showing me two products, asking me to choose one and then concluding that because I picked the first shown over the second more often that I was biased to pick the first one
No, one person picking would not be enough to form an opinion, If you show said products to say 1000 people and analyse the results, you would get an indication, double blind tests would be better but the argument is not comparable to the topic.
Are companies deliberately filing in one district?
If so, is it because of speed or the more likely possibility of getting a desired outcome?
Is the 88% statistic out of character with other districts?
Are the speed gains due to this metric?
88% is such a large number.... I do take your point that it does not prove or disprove impartiality but it does give a better indication than your argument (i.e. for every 100 cases aproximately 64 are heard and 57 ruled in one way is a serious statistic, what are the statistics for other districts? I would argue that if they are closer to the 50 / 50 mark, it would be a strong indication of bias. If they are similar- within a few percentage points to allow for anomalies, then it would not be.).
You can only rate the judges by their rulings and actions. 88% of their rulings went in one direction, what about the other districts?
88%!!
BM3
a. i think i replied to the wrong person to start with somewhat as I have problems with both your conclusion and grand parents.
..."
b. don't put words in my mouth please i didn't even use the word good or phenomenally anywhere in my reply let alone together.
c. I think you latched onto the wrong emphasis of what I was saying; the singularity of me wasn't what mattered or the point. the point was the demonstration of control. Are you correct about the one person point? absolutely; it should have read "ask
but my statement doesn't change. The results are just as meaningless. They don't imply anything.
as we've both said we agree that there is bias there; my sole point was that the inference made was incorrect and not a valid conclusion from the statistics. Without looking at a trial itself you can't determine partiality; even with 100% ruling one way it might be (and probably is) suggested, likely, and occuring. but the statistic alone can't tell you anything because you have to demonstrate that havent been in order to compare the cases in EDT to somewhere else.
i should have clarified that the only point i was disagreeing with of yours was your last statement "More importantly, what is the national average win rate for cases HEARD? That would indicate whether the court is impartial or not." I agreed with you on the rest.
I can only rate the judges by their rulings and actions; this is correct. However the actions of the legal teams involved play a DIRECT role on the judges rulings and actions because the Judge only rules on the things presented in the trial. Even if I am right and company Z is infringing on my product if I do shitty job in the courtroom and don't prove my case with any sufficient evidence the judge could be correct in handing the defense a victory; or the converse if company Z isn't infringing but doesn't adaquately prove so he could find them infringing when they aren't and this would be a correct finding.
here's a better analogy
It's like trying to test or analyze a radar detector's accuracy by calculating what it gives as the average speed after you have a 1,000,000 different people throw baseballs past it and comparing this to the average you get from a different detectors who had different people throwing at them. You can't judge the radar detector's accuracy by comparing the results to results obtained by different radar guns for a different group of people (or even the same people on different throwing attempts) because the averages resulting are dependent upon the data itself.
You even concede my point but then state it would be "strong" indication of bias; which is contradictory to your own statements. Do you know what a strong indication is? this isn't even a weak one because there is no correlation between the cases heard and the judges hearing them; you have to independent variables and not one. you can validly conclude nothing; or validly conclude anything depedning on how you look at it..
there is no such thing as a serious statistic. It doesn't matter if 88% is a big number or a little number; what matter is its statistical significant and we have no reason to believe that its an accurate or valid representation of anything other than what the other courts get.
IANAS but
"88% is such a large number"
It doesn't matter if it was 1, 50 or 100% the number doesn't matter. It might indicate that a REAL examination might be needed but thats all.
I would agree with your reasoning about expectations for comparison IF and ONLY IF you or whoever can demonstrate a means by which you can correlate the results with one another.
Feel free to take a look at this which will explain the basics of statistical significance. Here's a link from wikipedia; although you could find this in any book on statistics. http://en.wikipedia.org/wiki/Statistical_significance
Pay particular attention to the first lines of the page
"Jazz isn't dead, it just smells funny" ~Frank Zappa
EdelFactor