SHOPPING: ISN’T THAT
THE AMERICAN WAY?
Symposium On Ethical Issues in Patent Law
Catholic University of America
Columbus School of Law
March 29, 2007
Mary B. Graham
Morris, Nichols, Arsht & Tunnell LLP
Wilmington, Delaware
WHEN IS FORUM SELECTION
“FORUM SHOPPING” ?
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FACTORS PLAINTIFFS CONSIDER
IN FORUM SELECTION
RELATIVE EASE OF TRANSFER
FAVORIBILITY OF PROCEDURAL DEVICES
LIKELIHOOD OF SUMMARY JUDGMENT
TIME TO TRIAL
LENGTH OF TRIAL
JURY POOL
CHANCES OF WIN AT TRIAL AND AMOUNT OF
DAMAGES
PREDICTABILITY
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DELAWARE
TRANSFER RELATIVELY LESS LIKELY FOR MERE
CONVENIENCE REASONS
LESS RIGID ON CONTENTIONS
SUMMARY JUDGMENT NOT LIKELY
PACE IS MEASURED AND PREDICTABLE
TRIALS NOT OVERLY LONG
HIGH WIN RATE AND LEVEL OF DAMAGES
JURY POOL
WEALTH OF JUDICIAL EXPERIENCE
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Number of Patent Complaints Filed Per Judgeship Per Year
1/1/94-9/20/05
Rank District # Patent Complaints Filed Per Judgeship
Per Year
1 Del., D. 24.3
2 Cal., N.D. 11.5
3 Wis., W.D. 10.5
4 Minn., D. 9.9
5 Cal., C.D. 8.8
6 Utah, D. 7.2
7 Cal., S.D. 7.0
8 Wash., W.D. 6.4
9 Ill., N.D. 6.1
10 Tex., E.D. 5.7
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OF PATENT JURY TRIALS
(WHERE DAMAGES REQUESTED)
WITH VERDICTS
1997 through September 30, 2004, 38 of 57 juries --
67% -- awarded damages to the patentee.
2002 to September 30, 2005, 27 of 32 juries -- 84% --
awarded damages to the patentee.
October 1, 2005 – March 23, 2007, 10 of 11 juries –
91% -- patentee wins.
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