When is “Home Court” Not to Your Best Advantage?

You have discovered that your patent rights are being infringed, and you want to sue. Where should you sue? Does it matter? The answer is, “definitely. ”While a patentee’s first inclination may be to sue in its home court when feasible, the decision can have a tremendous impact on how a lawsuit proceeds; it deserves greater attention than reflexively choosing one’s home court. And if you have no home in the United States, you undoubtedly will be faced with the question of where to sue. Several factors are worth evaluating:

Where can you sue? (Where is the infringement occurring?) What is the speed of the court’s docket in each potential venue? Where is/are the defendant(s) located? Where are the likely witnesses and evidence, and can your selected court compel witnesses to testify at depositions? At trial? Is your chosen court likely to transfer your case to another venue? If the defendant(s) were to successfully petition the Patent & Trademark Office to reexamine the patent(s) in suit, what is the likelihood that your chosen court would stay your lawsuit pending the outcome of the reexamination? What would be the cost to sue (including to litigate a motion to stay or to transfer) in the court? And—looking into the tea leaves — what has been the historical “success rate” of patentees in the court?

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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