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5th Circuit May Stop Patent Troll "Forum Shopping" 76

Posted by ScuttleMonkey
from the small-speed-bumps-in-a-patent-troll's-daily-life dept.
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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5th Circuit May Stop Patent Troll "Forum Shopping"

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  • I've never understood why so many courts are very unreasonable when it comes to jurisdiction issues and motions to move the case elsewhere. Anyone know why? Maybe it's just my experience...
    • Re:Thank you (Score:5, Informative)

      by Vengie (533896) on Friday May 23, 2008 @04:32PM (#23522236)
      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.
      • by Anonymous Coward on Friday May 23, 2008 @06:12PM (#23523164)
        > 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.
        • Re: (Score:3, Insightful)

          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

          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

        • by Toad-san (64810)
          Sigh .. I guess Shakespeare had it right.

          "First we shoot all the lawyers."
      • 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.

  • by Anonymous Coward
    Slashdot Short Circuit May Stop Troll "First Posting"
  • by Gat0r30y (957941) on Friday May 23, 2008 @04:16PM (#23522060) Homepage Journal
    Judges in East Texas are the cheapest?
    • by slyvren (989423)
      Although I wouldn't doubt it. The costing of living here is quiet cheap. The real reason is once a case is setup in Marshall it's pretty much GG patent holder wins in 5 minutes flat. (That includes the time it takes to swear in.)
  • by Anonymous Coward on Friday May 23, 2008 @04:21PM (#23522130)
    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!
    • by EMeta (860558)
      Sorry! I think you'll find I already patented this.
    • by slyvren (989423)
      Marshall could use an economic boost, but it's not going to happen. I live VERY close to Marshall. If you asked people from there about patent filings or large businesses moving in 98% of the people would reply with: "Who-da-dun-what?". Marshall's economy hasn't been all that great since people lost interest in somewhat flashy Christmas light displays. (Not that it was wonderful before that.) The town is run down and already been through a pretty big collapse. It's what people around here call "Where t
      • by KC9AIC (858812)
        I'll back you up on that, having lived in nearby Longview, Texas and having been to Marshall. It's a pretty economically depressed town, with few technically literate people. Not that there's nothing good about it, but it's nothing like Tokyo (where I'm from).
  • Both sides? (Score:1, Insightful)

    by Hatta (162192)
    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".
    • Isn't it customary for an amici curiae brief to argue just one side?

      Yeah when you file an amici brief it is only for one side. There wouldn't be any point whatsoever to argue both sides of an issue, unless you really didn't care how it turned out. And if that's the case, why would you take the time/expense to file to begin with?

      Yes the summary, SURPRISINGLY, isn't very well written.

    • Re: (Score:3, Funny)

      by lucas_picador (862520)

      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 i

  • by Anonymous Coward on Friday May 23, 2008 @04:28PM (#23522198)
    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.
  • by 0111 1110 (518466) on Friday May 23, 2008 @04:30PM (#23522210)

    The history of In Re: Volkswagen is as follows: In their 2006 complaint in Singleton, et al. v. Volkswagen, et al., the plaintiffs allege that their daughter, 7-year-old Mariana Singleton, was sitting in the backseat of a 1999 Volkswagen Golf when a defective front passenger seat collapsed on her during a wreck with another vehicle, crushing her skull.
    Ewww. Pics? Why is it that it seems so sensible to wear a helmet on a motorcycle, but in a car it is considered insane? A motorcycle helmet in this case might have saved the life of this cute little girl.

    Some lawyers worry that the 5th Circuit could issue a ruling in In Re: Volkswagen that will hurt their business in the Eastern District -- the large numbers of patent and product liability suits has proven to be a boon to many lawyers and firms operating there.

    "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.
    • by PitaBred (632671)
      Because wearing a helmet severely impedes vision and hearing on top of what just being in a car already does? Wearing a helmet in a car is profoundly stupid and is more of a danger to the occupants and the other people on the road than being helmetless is.
      • by Blimey85 (609949)
        Which is why helmets aren't allowed in Nascar, Formula 1, or (insert some other one here). Helmets are just too dangerous. Much like seat belts. Just think if you drive into a body of water... how will you get out in time if you are buckled in? Or the air bag... do you know how fast it comes out? That will smash your poor head into a bloody mess.

        Would I wear a helmet in a car? No, probably not. I do however think that they could save lives. I just don't think the risk warrants their use.
        • by kidgenius (704962)
          No, their is a big difference here. First, when you are racing, you traveling at fairly high rates of speed which require more protection (roll cages, fire suits, neck braces, etc). Furthermore, professional drivers know how to drive, and they know what to expect. They know when a guy is going to attempt a pass and isn't going to sideswipe them on accident.
        • Re: (Score:3, Insightful)

          by PitaBred (632671)
          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, tho
      • Re: (Score:3, Insightful)

        by chromatic (9471)

        Because wearing a helmet severely impedes vision and hearing on top of what just being in a car already does?

        You have a point. The biggest problem with a seven year old girl wearing a helmet while driving a car is not the helmet.

    • by freenix (1294222)

      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 c

    • Re: (Score:3, Insightful)

      by darkmeridian (119044)
      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.
      • by dkf (304284)

        ]The Volvo was defective and killed the girl.
        You mean Volkswagen, not Volvo. Entirely different car makers.
  • Marshall Texas should be ashamed of themselves over this -- but they probably aren't.
  • by Ungrounded Lightning (62228) on Friday May 23, 2008 @04:39PM (#23522302) Journal
    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.
    • by Zordak (123132)
      I'm sorry, you must have thought you were posting on patently-O, where people believe there are valid patents. On Slashdot, the assumption is that all patents are invalid and all patent litigation is frivolous. Hence, your judge in Chicago deserves a medal.
  • Not a Solution (Score:2, Insightful)

    by Anonymous Coward
    It's like saying, "Court may stop politicians from accepting bribes at [insert particular restaurant]."

    Not quite the root of the problem, is it?
  • by Anonymous Coward
    "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!
  • by Khopesh (112447) on Friday May 23, 2008 @05:01PM (#23522536) Homepage Journal
    The Electronic Frontier Foundation [eff.org] (EFF), Software Freedom Law Center [softwarefreedom.org] (SFLC), and other key "patent busters" need to write open letters in support of this action. We need visibility here.
  • by kericr (1172199) on Friday May 23, 2008 @05:52PM (#23523014)

    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?

    • by futureb (1075733)
      it's not that plaintiffs should be allowed to create an advantage through choice of venue, it's that large corporate defendants, who have significant ties to forums all over the country, should have to defend themselves wherever they engage in conduct giving rise to liability. do you sell a product in east texas? if yes, too bad. what is the reverse of all the comments in this thread? that plaintiffs have to litigate patent suits in defendants' home states and home forums. for large companies who are i
    • IANAL, but the plaintiff has some advantages over the defendant which include choice of venue. However, the defendant usually has to only disprove a single element of the plaintiff's claims whereas the plaintiff will have to prove every single element of the plaintiff's claims to prevail.

      In a negligence cause of action, the plaintiff will have to prove, 1) duty; 2)breach; 3)causation and 4) damages. If the plaintiff can only prove duty, breach, and damages, but cannot prove causation, the defendant wins.

    • by delt0r (999393)
      I think a better question is.

      Why is justice or federal law dependent on which state/Judge the law is applied?
      • It's the same law everywhere if it arises under federal law in a federal court, but if it arises under diversity jurisdiction i.e. sueing under state law in federal court, then the state law applies.

        It's probably because the judge there is pro plaintiff or the juries are very sympathetic to plaintiffs.

  • The ink has just about dried on my "How to be a Texas patent troll" patent.
  • by PPH (736903)
    Switch the Forum Shopping case to the Sixth Circuit Court!
  • IANAL, but there's a big distinction between jurisdiction and venue. Jurisdiction is very important, venue, meh... it's there, but it's much less important than venue, especially when the defendant is a corporation rather than a person. See Int'l Shoe. Also, there's a preference for not disturbing the plaintiff's choice of venue. In horse and buggy days, it might have been a big deal, but today, I'd say tough cookies.

    As far as all the people saying it's patent trolling, you need to know that there are jur

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