XpresSpa Group Inc (XSPA)

[BAMAITAL]

Venues for patent litigation.

Looks like we're in a pretty good place.

Editor: Is the likelihood of summary judgment a contributing factor in forum selection?

McKool: Most summary judgment verdicts are in favor of the defendant so the likelihood of a successful motion creates an additional risk for the plaintiff. Losing a motion for summary judgment takes away the ability to have a case heard by a jury. The statistics indicate that with the exception of the Western District of Wisconsin, patentee plaintiffs have well over a 50 percent chance of winning a summary judgment motion.

Editor: Does the quality of the jury pool affect these decisions?

McKool: Statistics indicate that the Eastern District of Virginia and the Eastern District of Texas have a more favorable jury pool for plaintiffs than the other venues. In these courts, plaintiffs have more than an 80 percent chance of success at a jury trial. Most of the other popular venues are located in big cities such as Chicago, Los Angeles, San Francisco, Wilmington, and New York. Then you have the Eastern District of Virginia and the Eastern District of Texas at the opposite end of the spectrum, with these courts sitting in smaller towns. This demonstrates to me that plaintiffs are better off arguing their cases in small towns. This may be due to a sense in smaller towns that the Patent Office's issuance of a patent carries a lot of weight.

Editor: Are there certain court rules that plaintiffs and defendants consider advantageous?

McKool: The rules may effect the time to trial, which is important to both sides. The Eastern District of Texas adopted the Northern District of California's rules but implemented a compressed timing that results in a faster process.

Parties also should take into consideration the court's discovery rules. Plaintiffs tend to prefer broad discovery rules because plaintiffs want access to all of the defendant's records pertaining to allegations of product or method infringement. Disclosure of prior art relied on by the defendant is important for plaintiffs because it often indicates the claim construction position that the defendant will take. Plaintiffs prefer to have this information ahead of a Markman hearing so that they are more familiar with the defendant's position.

Editor: Do court rules that schedule Markman hearings before summary judgment motions tend to favor one side over another?

McKool: Defendants benefit more from courts that have these rules. A Markman hearing is an opportunity for each side to develop and present its claim construction position. Holding this hearing before a summary judgment motion focuses the claims and allows the parties to understand what the claims mean before the motion is heard. This is very good for defendants who make motions for summary judgment.

http://www.metrocorpcounsel.com/articles/8528/patent-infringement-cases-selecting-right-venue-can-be-critical