DelaWHERE? Revisited.Posted: December 2, 2011
Once upon a summer, I posted the following blog entry regarding patent troll lawsuits and the great state of Delaware. Side note: one of my father’s sisters lived in Delaware and when we were little and would go to visit her, she would always poke fun of her state. Her favorite phrase to repeat was what someone said to her one time when she gave her address: “Dela-where?” Always did think that was hilarious! Love wordplay.
Anyway, here’s what I wrote:
Delawhere? Delaware, that’s where
<pubDate>Thu, 14 Jul 2011 11:33:21 +0000</pubDate>
Asked to sum up venue/jurisdiction in the Patent Troll wars, many could do it in four letters: EDTX. The Eastern District of Texas has long been a hotbed of activity for patent troll suits
because it’s easy for Southerners to be bought off the judges are favorable to plaintiffs in these suits. The latests statistics that I’ve seen show almost a third of all suits brought in that venue. Quite the winning percentage!
However, tracking the lawsuits, as we are wont to do here, a small but noticeable trend is emerging. Delaware has less than 15% of the venue market right now, but the East Coast is picking up steam and I think that will continue.
Firstly, for the obvious reason: lots of companies incorporate there.
Secondly, the targets of lawsuits are starting to argue more strenuously that “Hey! Why are you suing me in Texas??” and asking the courts to move cases where they belong, which one would assume would be in the state of incorporation of either the plaintiff or the majority of the defendants. This is intellectual property we’re talking about here…it’s not as if you can bring suit in every single venue where infringement occurred. You’ve got to pick one; the state of incorporation of the patent-holder or alleged infringer is a logical choice.
Third, check out the Delaware IP blog if it’s not already on your morning reading list as it is, of course, on mine. Without even a deep dive, there are several article on the front page with the words “Motion Denied“…looks like The Law doesn’t want these cases moving. Fourth, T. John Ward is retiring. Chief Justice Scalia called him a “renegade jurisdiction” because of his unwillingness to grant transfer of venue. Not unreasonable to assume there will be some changes to how things are run down south of the Mason-Dixon line.
Someone needs to start publishing statistics on venues and put up charts and graphs showing how those venues are starting to change. Mostly so that when I’m right, everyone will be able to see it in living color.
But today, thanks to Twitter and the fact that I follow the guy who semi-Dooced me (and because he did that I’m not going to link to him, which can be directly translated to “Steph Has A Good Memory”), I read this article where OH! NOES!, a judge has argued exactly the opposite point:
State of Incorporation: Second, the appellate court held that heavy reliance on state of incorporation is inappropriate.
Neither § 1404 nor Jumara [the leading 3rd Circuit 1404 case] list a party’s state of incorporation as a factor for a venue inquiry. It is certainly not a dispositive fact in the venue transfer analysis, as the district court in this case seemed to believe.
Color me embarrassed.
The title of quoted article is, in fact, “Federal Circuit Holds Defendant’s State of Incorporation (Delaware) Improper Venue”. So not only does the ruling say “Dude, who cares where you’re incorporated? It has got nothing to do with venue.”, they added insult to injury by putting Delaware in parenthesis. Just to drive home the point that I WAS WRONG, SO WRONG. I love the last line of my entry, which I will repeat here because boy, does it make me look stupid:
Mostly so that when I’m right, everyone will be able to see it in living color.
Look, you can’t win them all, right? Right.