Are things changing regarding motions to change venue in false marking cases?

Nicole Keenan Mar. 9, 2011, 6:50am

Although the federal Eastern District of Texas has traditionally been reluctant to grant motions to change venue in false patent marking cases, it appears things are changing.

In the last two weeks alone, this Court has issued four opinions granting defendants motions to transfer plaintiff's qui tam false marking actions.

These decisions include: Promote Innovations LLC v. Schering Corp. and Merck & Co. Inc. (Feb. 14), Promote Innovations LLC v. Leviton Manuf. Co. Inc. (Feb. 17), Tex Pat LLC v. Becton Dickinson and Co. (Feb. 22) and Promote Innovations LLC v. Little Kids Inc. (Feb. 23).

The decisions generally held that the alleged actions that gave rise to the lawsuits occurred in defendants or transferee's venue choice, the majority of potential witnesses are located in the preferred venue choice and defendants or transferee have no tie to the Eastern District of Texas.

Thus, the courts concluded that the balance of private and public factors demonstrated that the transferee's venue was "clearly more convenient" than the venue chosen by plaintiffs.

Promote raised an interesting new argument in the Promote Innovations LLC v. Leviton Manuf. Co. Inc. case. Promote argued that since "[i]n the last two years, there have been more than 200 false-marking cases filed in this Court," the E.D. of Texas is more familiar with the law that will govern the case.

The Court noted that it was aware of the high number of false marking cases filed in this district and also pointed out that Promote has accounted for approximately 50 of those cases. However, the Court nevertheless held that the false marking statute is federal law and other federal courts were equally capable of applying such federal law.

It will be interesting to see if plaintiffs will continue to file large numbers of false marking cases in the Eastern District given these recent decisions granting motions to change venue.

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