RIM Asks Why Visto's Patent Suit Is Being Filed In Marshall, Texas?

from the good-question dept

It’s really not much of a surprise that, following Visto’s decision to sue RIM for patent infringement, that RIM would sue Visto back, claiming that the patents are invalid (claiming that there’s clear prior art) and that even if they are valid, RIM doesn’t infringe. However, what’s interesting is that as part of the suit, RIM is asking to move the case out of the court in Marshall, Texas, and over to Dallas — where their US headquarters are based. Visto, of course, is based in California, but still filed the suit in East Texas, because of the court there. We’ve already talked about how patent holders love to file their patent lawsuits in the small town of Marshall, Texas, as the court has proven to be remarkably friendly to patent holders. Those who know their patent system history will note that there was a similar situation a few decades ago resulted in a change to patent laws, after patent holders would rush to file infringement lawsuits in specific district courts, thought to be friendlier to patent holders. To avoid that problem, the system was changed so that all appeals on patent cases went to a centralized appeals court. However, since there’s so much pressure for those sued to settle patent infringement cases without having to go through multiple levels of the judicial system, there is still clearly forum shopping at the initial lawsuit level. When the filers are clearly picking jurisdictions based on nothing more than their propensity to rule in the patent-holder’s favor, there’s clearly a problem with how the system is working.

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “RIM Asks Why Visto's Patent Suit Is Being Filed In Marshall, Texas?”

Subscribe: RSS Leave a comment
Dr. Patent says:


The CAFC was established not to prevent the naively labeled “problem” of patentees finding so-called “friendly” forums, but rather to resolve the uncertainty litigants were finding in the court system.

Sorry to dissapoint you anarchists here at Techdirt, but the reason for the CAFC was not because someone naively though, like you, that “patents are bad,” but because many of the federal courts were ill-prepared to deal with complex patent issues and the outcomes were all over the map.

So the establishment of the CAFC was an indictment of certain federal courts that were wreaking havoc by their shoddy jurisprudence. It was never to prevent forum shopping. Excessive forum shopping was just a symptom of a disease within the federal court system when it came to trying patent cases.

The Eastern District of Virginia is a shining example of how a patent court should work and is also a favorite of patentees. Of course, you wont find that note here at Techdirt, it doesn’t fit the deconstructionist agenda.

Dr. Patent says:

Techdirt living in Neverland

From Michael Smith, ” ‘Patent Pirates’ Only Exist in Neverland,” Texas Lawyer, October 11, 2004:

“Efficient rules and speedy trial settings are the remedy for a small defendant who has a valid defense on the merits but simply cannot afford to litigate it. As the article notes, courts in the Eastern District of Texas have become national leaders in patent litigation, because they provide a relatively quick system for resolving patent disputes, which reduces the cost of preparing a case for both sides. This efficiency is due in part to several of the judges’ use of special rules for patent cases and their continuation of the district’s tradition of early, firm trial settings. Some lawyers perceive speedy trial settings and discovery limitations as benefiting plaintiffs, but in expensive commercial litigation, they work in small defendants’ favor as well.

Also, the claim that a quick docket is a gun to a defendant’s head in a patent case is demonstrably false. A recent confidential survey of Eastern District patent practitioners, now posted on the Eastern District Web site at http://www.txed.uscourts.gov/, made clear that most defense counsel do not perceive the court’s quick trial settings as harmful. In fact, the settings provide a way of defending a case on the merits that would otherwise cost too much, and one that is far less disruptive than the government determining who can and cannot possess intellectual property rights. A small patent defendant that thinks it can defend the case on the merits should want to be in the Eastern District, where it will have possibly the cheapest path to a trial setting anywhere in the nation.

Mike Masnick says:

so you're saying

that you’re fine with forum shopping…?

As for the other comments, we’re not saying there’s anything wrong with Marshall, Texas… but considering that neither company is based near there, it seems wrong that the case was filed there.

As for the final comment, the speed of the trial is not the issue. The rate at which they side with the patent holder is an issue.

Also, there were many reasons why CAFC was established… and many unintended consequences from its establishment (including a series of rulings that extended patent power far beyond its original intent). Forum shopping was certainly one of the reasons for the creation of CAFC.

Napoleon Dynamite says:

reading comprehension

He’s saying that being for or against forum shopping is a lot like saying you’re for or against cloudy days. Forum shopping happens – so what.

And I can’t understand why a blog hack thinks he has the qualification to talk about the establishment of the CAFC or forum shopping for that matter.


Dr. Patent says:

Let’s pick this silly article apart: “…Those who know their patent system history will note that there was a similar situation a few decades ago resulted in a change to patent laws, after patent holders would rush to file infringement lawsuits in specific district courts, thought to be friendlier to patent holders. To avoid that problem…”

Those who know their patent system history – unlike anyone at Techdirt. Techdirt talks about “a similar situation” a “few decades ago.” Let me more accurately describe the “situation.”

For decades, there was vast uncertainty in patent suit outcomes among the federal courts. If a case was appealed it went to a local federal appeals court, further amplifying the unpredictability.

Forum shopping was not, has never been, and will never be a “problem” as Techdirt so naively and ignorantly asserts. Forum shopping is a natural behavior based on a perception that an outcome can be predicted. Its a little like jury selection. I guess Techdirt is against jury selection too.

The CAFC was not established to prevent forum shopping. What a ridiculous concept. The CAFC was established for the benefit of patent litigants to streamline the appeals process and create a single point of appeals from various federal districts thus (in theory) reducing the uncertainty in outcomes.

Get real. Forum shopping is a non-problem.

Dr. Patent says:

FYI: legal definition – forum shopping:

The process by which a plaintiff chooses among two or more courts that have the power–technically, the correct jurisdiction and venue–to consider his case. This decision is based on which court is likely to consider the case most favorably. In some instances, a case can properly be filed in two or more federal district courts as well as in the trial courts of several states–and this makes forum shopping a complicated business. It often involves weighing a number of factors, including proximity to the court, the reputation of the judge in the particular legal area, the likely type of available jurors and subtle differences in governing law and procedure.

Mike Masnick says:

So what?!?

“Forum shopping happens – so what.”

So what?!? So what?!? It’s a BIG problem, because it shows that justice is not being served. And it’s not just me who’s saying this.

Also, your comment saying that forum shopping wasn’t a problem and wasn’t the reason for CAFC is an opinion — and one that an awful lot of people disagree with. There were many reasons for CAFC and forum shopping was clearly one. You can deny it all you want, but it doesn’t make you right.

And, despite your defense of forum shopping, it is a problem. Justice shouldn’t be served based on WHERE you file your court case, but on the actual facts of the case.

Zippy the Pinhead says:

symptom not problem

So what?! To focus on forum shopping belies the chronic naivete and ignorance found at Techdirt when it comes to legal issues. If possible, why don’t you stick to something you know about.

Forum shopping is a natural part of the decision making process when bringing a suit that is actionable in several venues as noted in the definition posted above from Nolo press.

On a bad day, in its most perverted form, forum shopping is a symptom, not a problem. It’s a symptom of the problem that some jurisdictions are better than others.

That being said, the idea of perfect uniformity in the legal system is a delusion. If the world were are perfect as you think you are, there would be no need for patents, patent lawyers, inventors, business, or any other endeavor of man. However, when reality is taken into consideration (you might want to experiment with that practice), there is NO SUCH THING as perfect uniformity in the universe much less the court system. Even the most ordered systems are not perfectly uniform. Therefore it is natural and to be applauded for plaintiffs to seek the most favorable venue. Often times, favorability of a venue works to the advantage of all parties.

You sound more and more like a moron every time you comment on patent issues. Its especially entertaining to see you comment on the origins of the CAFC – which are well documented and not simply my opinion.

And I’m just a simple Pinhead.

Dr. Patent says:

All I’m trying to say is that forum shopping diminshes when outcomes are more predictable. The CAFC was established primarily to take the uncertainty out of the appeals process and to, by definition, eliminate all appellate forum shopping. To the extent forum shopping is reduced (and it has been), great. Therefore, its naive to focus on “forum shopping” as a problem. Its a natural result of economic choices made by plaintiffs when outcomes are uncertain in a home jurisdiction. Actually, forum shopping has a benefit in that it drives court systems that are sidestepped to provide better services or lose “business.”

Mike Masnick says:

spoken like a true lawyer

Funny, we talk about stuff we know about all the time, and yet we’re repeatedly called ignorant by one person… you.

Yet when we actually point out where you’re wrong, you respond with “blah, blah, blah.”

So, tell us Rob, is that the defense you use in court when you’re shown to have made a factually incorrect argument?

You are right that there’s no perfect world, but to then use that as an excuse to say that the non-uniformity of the court system is just fine is ridiculous. The point is to call it out, and note that it is a problem and to discuss real solutions.

The second note to say that forum shopping is “a natural result of economic choices” is so laughable I don’t even know where to start. The courts are not a part of the marketplace. They’re a government institution, designed to promote justice fairly accross the land. Of course it’s not perfect — but to promote different court decisions as being a GOOD thing so that litigants can better choose where to sue is one of the most bizarre legal concepts around.

You do realize that the Supreme Court itself is around in large part to help PREVENT that sort of thing?

Now are you going to tell us we’re ignorant on what the Supreme Court does? Yes, because only lawyers like you could possibly understand… even though more and more lawyers seem to agree with us.

Dr. Patent says:

Now I’m just a simple patent expert, but for someone to say that economic choices can’t or don’t take place outside “the market,” (whatever that is) well, … I just dont know what to say either…

And Dr. Patent notes that Techdirt did not just call out forum shopping as a phenomenon of the economic choices made by litigants, but rather Techdirt ran around as if the sky was falling, as if suprised that forum shopping would even take place and that it somehow it “must be stopped.”

No one is saying the symptom of forum shopping is good or bad, its the non-uniformity that is probably not desirable, but litigants will, quite naturally (or “natch” in blog-baby-speak) study the landscape and file their case in the forum deemed to be most favorable for them. As I pointed out earlier, what is often good for the plaintiff is good for the defendant.

Mike Masnick says:

reading comprehension

Hmm. We did not say that forum shopping “must be stopped.” Please, point out where we said that.

What we noted was that it’s clearly happening, with lots of companies filing patent lawsuits in this one particular court… and we noted that this is a problem, demonstrating one of the issues with the patent system.

Are you disagreeing with any of that?

Dr. Patent says:

Let's not let Techdirt's problems be our problems

I say if a bunch of people are filing in a jurisdiction is must suggest that they know what the heck they are doing. Doesn’t sound like much of a problem to me. I say if a patentee feels like he has to travel to Marshall Texas for incrementally “better” justice, then that’s a choice that the patenee is free to make subject to the patentee’s ability to establish proper jurisdication.

The biggest arguments against the so-called “problem” of forum shopping are the travel and related per-diem costs of litigation for remote parties. A closer review reveals this too is probably more of a non-problem, especially with Marshall’s rocket docket.

Mike Masnick says:


What are you talking about?

Obviously, it IS a problem for a lot of companies, such as RIM, who know that Marshall favors patent holders filing infringement cases a disproportionate amount of the time. To those being sued, that’s a huge problem, because they don’t feel they’re getting a fair trial.

Is this really that hard to comprehend? THAT is exactly the problem that companies are complaining about. Not travel costs.

Michael "TheZorch" Haney (profile) says:

The Vultures Are Circling

They smell blood in the water. First NTP gets millions out of their suit with RIM despite the very questionable validity of their patents and the latest news that they paid to have prior art suppressed. Now comes Visto looking to cash in on the flow of money.

I say reform the USPO, ban software patents, ban patents on “ideas” that haven’t been developed into a product yet, and allow patents to expire like copyrights so if nobody renews them they become public domain.

anonymous coward says:

crackberries? the new cocaine?

perhaps it’s because everyone is tired of dealing with anyone holding a blackberry. The crackberry addicts are rude, can’t read more than three lines of an email, and have the attention spans of a ritalin addict.

I detest IP companies that do nothing, but applaud anyone who challenges this scurge on technology.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...