What determines the plaintiff’s court selection in patent litigation?

"What determines the plaintiff’s court selection in patent litigation?" This question is being addressed at a conference, European Policy for Intellectual Property, which is taking place at the University of Glasgow next week on Wednesday 2 and Tuesday 3 September. One of the papers is "WWhat to Buy When Forum Shopping – Determinants of Court Selection in Patent Litigation" by Fabian Gaessler, a Research Fellow at the Max Planck Institute for Innovation and Competition in Munich, Germany. The abstract of his paper is available online and reads as follows. in relevant part:

Patent infringement disputes frequently fulfil territorial jurisdiction requirements at multiple courts, giving the patent holding plaintiff the option to freely select the court of his choice to seek remedies. While these so-called forum shopping activities are frequently observed, the factors influencing court selection have remained largely unexplored. New academic research ... examines the determinants of the plaintiff’s court selection at German regional courts. The study ... finds that plaintiffs consider the expected economic loss from delayed judgment when choosing their court. Speedy patent enforcement is in particular valued, if plaintiff and alleged infringer compete in the product market.

German regional courts differ primarily in their time until judgment

To analyse forum shopping in patent litigation, the researcher utilises a dataset of patent litigation cases in Germany which covers all proceedings filed at the regional courts in Düsseldorf, Mannheim, and Munich between 2003 and 2008 [presumably the age of the dataset does not affect the author's conclusions; this would not be so for eg England and Wales, where subsequent reforms have rendered the data from that period little more than a historical curiosity]. These three courts account for approximately 80 to 90% of all patent infringement proceedings in Germany.

The results indicate that judges at the three courts differ in their tendency to draw on time-consuming expert opinions depending on the patent’s technology. Furthermore, judges seem to differ in their propensity to stay the proceeding due to a parallel validity challenge.

Overall, judges at the Düsseldorf regional court are less likely to call for an expert opinion or to grant a stay than judges in Mannheim and Munich. Although ordinary proceedings take the longest at the Düsseldorf regional court, the low likelihood of delays gives it the lowest expected length of proceeding for a major share of patent disputes, which explains the popularity of the Düsseldorf regional court among patent holders.

The results of the study further show that the distance to a particular court has a significant negative effect on court selection. Especially small plaintiffs highly value local access to court.

Valuable insights for the discussion about the design of the unified patent court

The study’s findings are of particular importance for the discussion about the design of the Unified Patent Court (UPC), which is scheduled to commence operations in late 2016. Although the implementation of the UPC has in general been welcomed as a solution to the currently fragmented European patent litigation system, practitioners, scholars, and policy makers disagree how well the UPC will balance the trade-off between uniform judicial decision-making and the provision of local access to court.

In its currently planned form, the UPC will consist of multiple entry courts spatially dispersed over Europe to provide litigants with the option to seek remedies in close proximity – namely, a central division in Paris, regional divisions in London and Munich, and a still unspecified number of local divisions. The provision of multiple entry courts will assure that small patent holders are not disfavoured due to the lack of a nearby court when trying to enforce their patents [though the risk of fragmentation in judicial behaviour will presumably increase with every additional court].

However, the plurality of courts has also raised concerns that plaintiffs may exploit differences in decision-making and case management. While a centralized appeals court at the UPC will promote uniformity in judicial decision-making, judges maintain considerable discretion in the form of procedural options prior to rendering a judgment on the merits, such as whether to transfer the proceeding, stay the proceeding, or decide on validity. Refined procedural rules seem crucial to avoid additional court heterogeneity resulting from different interpretations of statutes by judges [there's a difference between different interpretation of statutes -- which is clearly something to avoid -- and different subjective evaluations of the facts and the weight of parties' arguments in relation to the same interpretation of statutes, which may be impossible to eradicate -- as experience of the harmonised European trade mark law has shown].

Thanks go to Chris Torrero for providing this information.