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The New Texas Two-Step
–E.D. of Texas Defendants Seek to Ride Off Into the Sunset–
The E.D. of Texas is well established as the premiere plaintiff forum for patent holders, speedily deciding patent cases, and finding patents invalid relatively infrequently. Similarly, the emergence of patent reexamination as an effective tool in avoiding litigation costs by staying a concurrent litigation has proved effective in the E.D. of Texas sporadically at best; Judge Ward and Judge Davis in particular very rarely, if at all, stay an action in favor of a pending patent reexamination.
Since In re TS Tech, 551 F.3d 1315 (Fed. Cir. 2008), a motion to transfer to a more convenient venue from a Texas court has become a marginally effective defendant strategy. Now, as a matter of course, defendants will seek transfer of a patent infringement case to a more “convenient” forum. Of course, convenience is rarely a mere issue of geography, but rather a basis for moving the dispute to a less patent friendly forum. In the eyes of defendants, less patent friendly would describe practically any other forum. Yet, as noted in the chart below, infringement cases seeking transfer in 2008-2009[1] increasingly sought California as a destination of “convenience.”
A closer look at the 2008-2009 cases however, may reveal more than just a simple transfer strategy, but a two-step, tactical dance. Read the rest of this entry »
