Forum shopping

Forum shopping, regarding patents, exists regarding litigation and making legislation.

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 and was ruled "perfectly legitimate".

In the USA, the Eastern District of Texas is seen as a good forum for patent litigators. 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."

In one case, 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.

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.

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 whic 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

• http://www.patentlyo.com/patent/2006/08/patentlyo_judge.html
• A Haven for Patent Pirates, by Sam Williams - about Texas
• Patent Litigation Forum Shopping, 7th of May 2010, Patently-o, discussing a new paper by Professor Mark Lemley