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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?
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!
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)
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
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
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.
Or is the summary just incoherent, and they really meant to say "either side".
You're being overly pedantic. The sentence parses just fine as:
"There are no less than six amici curiae who have filed briefs, arguing [among them] both sides of it."
And, as someone else pointed out, and to let you know that pedantry is pretty much de rigeur on ./, the singular is amicus curiae, or "friend of the court".
(De rigeur is French. It translates roughly as "according to protocol".)
(Also, the initial sentence is incorrect in a different way: it should read "no fewer than six".)
(Yes, I'm being a jackass on purpose.)
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.
> 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.