Forum shopping
Forum shopping (or venue shopping), regarding patents, exists regarding litigation and making legislation.
Contents
For litigation
For litigation, forum shopping is when patent holders have a choice of courts in which to file litigation. The patent holder can thus choose the court (the forum) which they think will give them the best chance of winning or where they will get the largest award.
USA
The issue of forum shopping was raised in a 2008 CAFC case, where it was ruled "perfectly legitimate".[1]
However, this does not mean it's legitimate in all cases. It was found legitimate in a 2010 case, where Apple was sued by a patent troll that set up a ghost office in East Texas. Apple filed to have the case moved to another district, but lost.[2] But in a 2014 case, Google was sued by Rockstar in East Texas but the judge ruled the case should be moved to California because Rockstar's majority shareholder is the California-based Apple and Rockstar's litigation was clearly part of Apple's business activities.[3]
Patent holders' favourite: East Texas
In the USA, the Eastern District of Texas (EDTX) is seen as a notoriously good forum for patent litigators.[4][5][6] According to PriceWaterhouseCoopers' 2009 patent litigation study, "Certain federal district courts (particularly Virginia Eastern and Texas Eastern) continue to be more favorable to patent holders, with shorter time-to-trial, higher success rates, and higher median damages awards."
As of 2014, Delaware (DDEL) is also becoming a popular venue.[7]
Europe
Case law is not binding between countries which have signed the European Patent Convention, but a win in one country would certainly make product developers in other countries worried.
Germany
Florian Mueller points out in 2010 that:[8]
50% of all European patent litigation takes place in a single city: in Düsseldorf, a German city that patent holders often choose as their preferred European forum.
But in July 2012, he noted that "This morning, Judge Andreas Voss ("Voß" in German) of the Mannheim Regional Court, who has already presided over more smartphone-related patent lawsuits than any other judge in the world, ..."[9]
For legislation
In Europe, there was already one clear attempt to make software ideas patentable, that is, the proposal for legislation which the European Parliament in 2005. Subsequent proposals which avoid legislation and which could make software patentable are often seen as forum shopping.
The Anti-Counterfeiting Trade Agreement is also seen as forum shopping, using international negotiations to create legislation which would not be accepted if proposed directly to national parliaments.
Related pages on ESP Wiki
- United Patent Litigation System (UPLS) - a proposed European system which would solve the forum shopping problem, but would introduce far worse problems
External links
- A Haven for Patent Pirates, 3 Feb 2006, by Sam Williams - about Texas
- Patent Litigation Forum Shopping, 7 May 2010, Patently-O, discussing a new paper by Professor Mark Lemley
- Judge Takes Stand Against Forum Shopping, 20 Aug 2006, Patently-O
- In re Acer: Transfer Out of the Eastern District of Texas, 6 Dec 2010, Patently-O, transfering out of Texas is sometimes possible
- In re Vistaprint Ltd.: Venue Transfer Denied, 15 Dec 2010, Patently-O - but only sometimes
- In re Microsoft: Presence Created Solely for Purposes of Litigation Does Not Support Venue, 5 Jan 2011, Patently-O
References
- ↑ http://www.patentlyo.com/patent/2008/10/cafc-allows-ven.html
- ↑ http://www.patentlyo.com/patent/2010/05/federal-circuit-denied-apples-motion-to-transfer-venue.html
- ↑ "Google wins a game of “Escape from East Texas,” linking Rockstar to Apple". http://arstechnica.com/tech-policy/2014/04/google-wins-a-game-of-escape-from-east-texas-linking-rockstar-to-apple/. "A federal judge issued an order today decreeing that Google's court battle against a "patent troll" owned by its competitors must be fought out in California, not in Texas. (...) [Judge] Wilken goes on to note that Apple, a Silicon Valley stalwart, is the majority shareholder of Rockstar."
- ↑ http://www.nytimes.com/2006/09/24/business/24ward.html
- ↑ http://www.technologyreview.com/InfoTech-Software/wtr_16280,300,p1.html
- ↑ "Cato Handbook for Policymakers". http://www.cato.org/pubs/handbook/hb111/hb111-38.pdf. "Eastern District of Texas has become notorious for its extreme patent-friendliness."
- ↑ "Disjunction in IP Litigation: Patent Courts are not Copyright Courts". http://patentlyo.com/patent/2014/02/disjunction-litigation-copyright.html. "Patent litigators are well aware of the ongoing popularity of the Eastern District of Texas and the rising popularity of the Delaware court."
- ↑ http://fosspatents.blogspot.com/2010/05/long-and-winding-road-to-single-eu.html
- ↑ http://www.fosspatents.com/2012/07/with-german-fat-patent-ruling-microsoft.html
