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5th Circuit May Stop Patent Troll "Forum Shopping"

ScuttleMonkey posted more than 6 years ago | from the small-speed-bumps-in-a-patent-troll's-daily-life dept.

The Courts 76

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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76 comments

Frist psot!!!! (-1, Redundant)

schlick (73861) | more than 6 years ago | (#23521958)

frist psot

I rool

Re:Frist psot!!!! (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#23522200)

First picture of Adam Savage's taint, as well. Am I the only one who was assaulted by that horror today? I realize it isn't him, but just for a moment it looked enough him to make me think of a new series called "Taintbusters" and then I giggled like a retard with an ice cream cone.

I know, I know. "-1 Really Stupid"

Good (-1)

PunkOfLinux (870955) | more than 6 years ago | (#23521962)

Maybe this will stop some of the ridiculous patent trolling.

Re:Good (1)

Vengie (533896) | more than 6 years ago | (#23522284)

No. It will just make the trolling take longer. One of the advantages with the rocket docket was getting wholly specious claims dismissed expediently.

Re:Good (0, Redundant)

Anonymous Coward | more than 6 years ago | (#23522440)

I fail to see how this comment is "Insightful". It would be like /. announcing a kernel update and someone saying "Good. Maybe this will improve the efficiency." Seriously mods, that comment adds virtually nothing to the discussion.

Re:Good (0)

Anonymous Coward | more than 6 years ago | (#23522546)

That is one of the lamest attempts at getting the hallowed "Frosty Piss" I've seen in a while.

Thank you (1)

liquidpele (663430) | more than 6 years ago | (#23521996)

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 (4, Informative)

Vengie (533896) | more than 6 years ago | (#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.

Shouldn't you explain that more? (5, Informative)

Anonymous Coward | more than 6 years ago | (#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:Shouldn't you explain that more? (2, Insightful)

harlows_monkeys (106428) | more than 6 years ago | (#23525154)

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 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!

Re:Shouldn't you explain that more? (1)

Toad-san (64810) | more than 6 years ago | (#23544665)

Sigh .. I guess Shakespeare had it right.

"First we shoot all the lawyers."

I think you just ignored the point. (1)

ibane (1294214) | more than 6 years ago | (#23524530)

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.

From the "Read between the lines" department (0)

Anonymous Coward | more than 6 years ago | (#23522026)

"Pooley says he agrees with Baxter. 'I know the judges there, and I think very highly of all of them. This is a point of view offered by a group that's trying to bring a national perspective to the issue,' Pooley says."

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.

Re:From the "Read between the lines" department (3, Informative)

kesuki (321456) | more than 6 years ago | (#23522392)

"Pooley says he agrees with Baxter. 'I know the judges there, and I think very highly of all of them. This is a point of view offered by a group that's trying to bring a national perspective to the issue,' Pooley says."

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/ [technologyreview.com]

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 [law.com]

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..

Re:From the "Read between the lines" department (3, Informative)

j0nb0y (107699) | more than 6 years ago | (#23522820)

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.

Re:From the "Read between the lines" department (1)

kesuki (321456) | more than 6 years ago | (#23523148)

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...

Maybe statistics spun the right way... (0)

Anonymous Coward | more than 6 years ago | (#23522878)

Remembering the guy who said 57% was a lawyer, perhaps he wasn't technically lying. It could be both statistics are correct. 88% of the cases that reach the trial stage are won by the patent 'owners', but only 57% of the filed cases reach trial AND are won by the plaintiff. The remainder could have been settled in favor of the plaintiff before reaching the trial stage when the victims^H^H^H^H^H^H^Hdefendants realized they were in the Eastern District and would be shafted.

Re:From the "Read between the lines" department (3, Insightful)

Free_Meson (706323) | more than 6 years ago | (#23523104)

the two articles in TFS contradict one another....
No, they do not.

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.
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.

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?
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.

Hmm, supposition on your part? (1, Insightful)

Anonymous Coward | more than 6 years ago | (#23523408)

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.

Re:From the "Read between the lines" department (1, Interesting)

Anonymous Coward | more than 6 years ago | (#23523500)

"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.

Re:From the "Read between the lines" department (1)

blind monkey 3 (773904) | more than 6 years ago | (#23523746)

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.

Re:From the "Read between the lines" department (1)

EdelFactor19 (732765) | more than 6 years ago | (#23524618)

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.

Re:From the "Read between the lines" department (1)

blind monkey 3 (773904) | more than 6 years ago | (#23540725)

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%!!

Re:From the "Read between the lines" department (1)

EdelFactor19 (732765) | more than 6 years ago | (#23687479)

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 [wikipedia.org]

Pay particular attention to the first lines of the page:
"Statistical Significance, a result is called statistically significant if it is unlikely to have occurred by chance. "A statistically significant difference" simply means there is statistical evidence that there is a difference; it does not mean the difference is necessarily large, important, or significant in the common meaning of the word"

Jack Thompson would (have?) probably love/d to have you on his jury for his next flawed statistic diatribe about kids and violent video games.

Re:From the "Read between the lines" department (1)

EdelFactor19 (732765) | more than 6 years ago | (#23524532)

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.

Re:From the "Read between the lines" department (1)

ExploHD (888637) | more than 6 years ago | (#23524060)

we all know a tank full of lawyers would win over a tank full of sharks, even if we gave the sharks lasers
BLASPHEMY!

Updated headline (2, Funny)

Anonymous Coward | more than 6 years ago | (#23522042)

Slashdot Short Circuit May Stop Troll "First Posting"

Re:Updated headline (1)

garcia (6573) | more than 6 years ago | (#23522390)

Naw, the new data center is in Chicago, not Texas.

Perhaps, just maybe (3, Insightful)

Gat0r30y (957941) | more than 6 years ago | (#23522060)

Judges in East Texas are the cheapest?

Re:Perhaps, just maybe (0)

Anonymous Coward | more than 6 years ago | (#23522712)

Juries are.

Re:Perhaps, just maybe (1)

slyvren (989423) | more than 6 years ago | (#23523390)

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.)

New order of business (5, Funny)

Anonymous Coward | more than 6 years ago | (#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!

Re:New order of business (1)

EMeta (860558) | more than 6 years ago | (#23522540)

Sorry! I think you'll find I already patented this.

Re:New order of business (0)

Anonymous Coward | more than 6 years ago | (#23523436)

Or Delaware could just start being troll friendly. They are already so insanely corporation friendly everyone is incorporated there. Oh, wait, those corporations are the defendants in patent troll cases. There are probably dozens of venues used to cheat justice. I seem to remember there's asbestos suit friendly locations as well.

The fact that venue shopping exists proves that justice isn't blind.

Re:New order of business (1)

slyvren (989423) | more than 6 years ago | (#23523558)

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 the Po' Folk come from". P.S. No, it's not the breeding ground of one of my ex's nor a high school football rival. My opinion is 100% "fair and balanced".

Re:New order of business (1)

KC9AIC (858812) | more than 6 years ago | (#23552925)

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? (1, Insightful)

Hatta (162192) | more than 6 years ago | (#23522150)

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".

Re:Both sides? (1)

Corpuscavernosa (996139) | more than 6 years ago | (#23522196)

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:Both sides? (1)

Vengie (533896) | more than 6 years ago | (#23522264)

When you file an amicus brief. </pedant>

Re:Both sides? (1, Informative)

NMerriam (15122) | more than 6 years ago | (#23522292)

I'm wearing my amici briefs right now!

Re: amici acme... (0)

Anonymous Coward | more than 6 years ago | (#23522454)

He said amici, not ACME. Wait... why are you wearing Tiny Toon Adventures' ACME underware?

Actually no, don't tell me!

Re:Both sides? (3, Funny)

lucas_picador (862520) | more than 6 years ago | (#23522746)

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.)

Re:Both sides? (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#23522928)

Do you have Asperger's or are you trying to be funny?

Lawyers, statistics and lies... (5, Insightful)

Anonymous Coward | more than 6 years ago | (#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.

the system is very broken (4, Funny)

0111 1110 (518466) | more than 6 years ago | (#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.

Re:the system is very broken (1)

PitaBred (632671) | more than 6 years ago | (#23522584)

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.

Re:the system is very broken (1)

Blimey85 (609949) | more than 6 years ago | (#23522846)

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.

Re:the system is very broken (1)

kidgenius (704962) | more than 6 years ago | (#23523274)

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:the system is very broken (2, Insightful)

PitaBred (632671) | more than 6 years ago | (#23523398)

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.

Re:the system is very broken (3, Insightful)

chromatic (9471) | more than 6 years ago | (#23523464)

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.

Picture I can't find. (2, Insightful)

freenix (1294222) | more than 6 years ago | (#23524738)

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.

Re:the system is very broken (2, Insightful)

darkmeridian (119044) | more than 6 years ago | (#23525156)

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.

Re:the system is very broken (1)

dkf (304284) | more than 6 years ago | (#23525434)

]The Volvo was defective and killed the girl.
You mean Volkswagen, not Volvo. Entirely different car makers.

Should Be Ashamed (1, Insightful)

Nom du Keyboard (633989) | more than 6 years ago | (#23522294)

Marshall Texas should be ashamed of themselves over this -- but they probably aren't.

Re:Should Be Ashamed (0, Offtopic)

LandDolphin (1202876) | more than 6 years ago | (#23522448)

I know this is off-topic, but I had to ask...

"The California Supreme Court that legalized gay marriage, by the same logic has now legalized Polygamy as well."

Please explain this to me.

Re:Should Be Ashamed (0, Offtopic)

Archangel Michael (180766) | more than 6 years ago | (#23522606)

If it is okay for two people of the same sex to be married, why not the same for three people (or more)??

Now, apply whatever argument you have against plural marriages back on Gay Marriage and see if you still agree.

I haven't seen a single argument against plural marriage that doesn't also apply to gays (and, btw, straight marriages as well).

Quite frankly, I have no idea what the government has to do with marriage anyways, as it is a a sacred (traditionally) ceremony.

And I'm one of those religious nutballs that most Slashdottians rail against. Personally, I think we should also get rid of seven day weeks, all "holidays", while getting mail on weekends. I want all government offices open seven days a week, because weekends were originally sacred (religious) in nature.

You see, I'm ALL FOR the secular government to start acting secular, and get the hell out of my faith.

Re:Should Be Ashamed (1)

ourcraft (874165) | more than 6 years ago | (#23523582)

Which faith do you want them to start enforcing? Just yours or all of them?

Re:Should Be Ashamed (0)

Anonymous Coward | more than 6 years ago | (#23523766)

Because there is approximately 50% men and 50% women in the world.
You allow multiple marriages, you have men taking double or more their share of the women.
Men that don't get sex (no wives) look for it or get violent.
Leads to rapes, spousal cheating, and violence.
Not to mention wife collecting has it's heart around the man being more powerful than the women. I've never heard of any sizable portion of women wanting more than one man. It may start off as innocent, but it will end up with women being second class citizens.

Re:Should Be Ashamed (1, Insightful)

Anonymous Coward | more than 6 years ago | (#23524108)

There are basically two types of marriage, state marriage (which deals with signing the papers to get your moneys transferred into one account, getting tax breaks for having kids and being married, and who to care for you when you are incapacitated, etc) - this includes common law marriage, and religious marriage (has to do with love, unity of two beings, theology, the couple's thoughts about each other, etc).

So, if marriage is a religious thing, and should be sacred, why should the government have any say in who can marry who? Doesn't separation between church and state apply here? We don't want the government saying who can love who, do we now?

And I don't think anybody, for one second, will tell me that (strictly) state marriages are all that sacred, what with everybody and their mother getting married in Las Vegas (just look at Britney Spears)! So why does the government have a say about how many people of any persuasion can raise kids (if they are deemed fit parents that are able to care), or how many people can combine their bank accounts, or how many people can change their last name/s, or who can take care of you when your incapacitated? Those are personal decisions, and the government really has no right interfering in those.

I am all for secular government as well (even though, I, too, am a religious "nutball"). And I will get the hell out of any faith when that faith gets out of my relationships with other people (even though I'm heterosexual, and a monogamist). You can't, and really shouldn't try, to legislate morality.

Another way to think of it is this:
God gives us free will. If we should follow his example, shouldn't we do the same to our fellow people?

Posting anon for various reasons (at work, responding to troll/offtopic, unpopular viewpoint).

Re:Should Be Ashamed (0)

Anonymous Coward | more than 6 years ago | (#23522686)

"The California Supreme Court that legalized gay marriage, by the same logic has now legalized Polygamy as well."

Please explain this to me.

Maybe it's because there's not a single word in the California constitution (as opposed to statutes passed by the legislature) that happens to mention gays. Ergo, any constitutional argument that gays have the right to marry, would naturally apply to polygamists as well. Take the court's decision, load it into your editor, do a s/gay/polygamist/g, and the trueness/falseness of every sentence, remains the same as it had been before your edit.

Justice and fairness were served by acknowledging the right of gays to marry, but the court merely did that because it was just, not because the constitution actually supported it. And yet, their decision is now law, so it can now be cited by polygamists.

And that's a good thing for justice and liberty as well. But it's also radical, and is going to make people that feel a need to push monogamy on others, pretty nervous.

Re:Should Be Ashamed (0)

Anonymous Coward | more than 6 years ago | (#23523322)

Have you ever known of any person/group/entity/corporation/organization/etc. that resides in Texas to have ever been ashamed of anything they have done?

I had heard this also worked on the other side. (3, Interesting)

Ungrounded Lightning (62228) | more than 6 years ago | (#23522302)

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.

Re:I had heard this also worked on the other side. (1)

Zordak (123132) | more than 6 years ago | (#23526312)

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 (2, Insightful)

Anonymous Coward | more than 6 years ago | (#23522308)

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

Not quite the root of the problem, is it?

The first thing we do... (1, Interesting)

Anonymous Coward | more than 6 years ago | (#23522398)

"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!

Patent Trolling, eh? (-1, Troll)

Skee09 (987325) | more than 6 years ago | (#23522514)

Hey, guys, check out this cool, er, article [goatse.cx] .

EFF + Software Freedom Law Center, please stand up (3, Interesting)

Khopesh (112447) | more than 6 years ago | (#23522536)

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.

Picking a fight for the wrong reason (3, Insightful)

kericr (1172199) | more than 6 years ago | (#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?

Re:Picking a fight for the wrong reason (1)

futureb (1075733) | more than 6 years ago | (#23524012)

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 in constant litigation, this would create an insurmountable advantage. this is not a popular thing to say, and i'm no friend of patent trolls, but this is a cost of doing business as a national & international corporation. period.

Re:Picking a fight for the wrong reason (1)

LonghornXtreme (954562) | more than 6 years ago | (#23524412)

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. In essence, both sides have to make 4 arguments; 1 for each element. The defendant only has to beat the plaintiff at 1 out of the 4 arguments to win, but the plaintiff has to win ALL 4 arguments. I'm not saying venue doesn't matter, but it's a lesser issue.

It's not the end of the world for parties to travel to Marshall from Dallas occasionally. Sure convenience is nice, but the district judge is not forced by the Federal Rules of Civil Procedure to transfer the case.

Re:Picking a fight for the wrong reason (0)

Anonymous Coward | more than 6 years ago | (#23525100)

If this were a criminal suit, the plaintiff (or, more accurately, the prosecution) would have to prove something but, since this is a civil suit, they only have to show that the preponderance of the evidence supports their claim. I know it's nitpicking to focus on one word of your post--prove--but substituting the word show is an important change and makes the plaintiff's position a lot easier to win.

Re:Picking a fight for the wrong reason (1)

delt0r (999393) | more than 6 years ago | (#23526038)

I think a better question is.

Why is justice or federal law dependent on which state/Judge the law is applied?

Re:Picking a fight for the wrong reason (1)

LonghornXtreme (954562) | more than 6 years ago | (#23533987)

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.

Oh Bugger!! (1)

EEPROMS (889169) | more than 6 years ago | (#23523318)

The ink has just about dried on my "How to be a Texas patent troll" patent.

Quick! (1)

PPH (736903) | more than 6 years ago | (#23523952)

Switch the Forum Shopping case to the Sixth Circuit Court!

It's not patent trolling (1)

LonghornXtreme (954562) | more than 6 years ago | (#23524368)

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 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.

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