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Published byJanel Preston Modified over 9 years ago
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SHOPPING: ISN’T THAT THE AMERICAN WAY? Mary B. Graham Morris, Nichols, Arsht & Tunnell LLP Wilmington, Delaware Symposium On Ethical Issues in Patent Law Catholic University of America Columbus School of Law March 29, 2007
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2 WHEN IS FORUM SELECTION “FORUM SHOPPING” ?
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3 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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4 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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5 Number of Patent Complaints Filed Per Judgeship Per Year 1/1/94-9/20/05 RankDistrict # 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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6 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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