NEW YORK, Nov 3 (Reuters Legal) - In the latest development
in the ongoing smartphone patent wars, Apple Inc has apparently
engaged in some creative forum shopping, taking its fight with
Motorola Inc to Madison, Wisconsin, which is developing a
reputation as a "rocket docket" for patent litigation.
The iPhone maker filed two lawsuits against rival Motorola
last week in U.S. District Court for the Western District of
Wisconsin, claiming the Droid smartphone maker infringes on
Apple's touchscreen and display patents. Motorola has pending
patent infringement claims against Apple in the Northern
District of Illinois, the Southern District of Florida, and
with the U.S. International Trade Commission (ITC) over
different technologies used in Apple's iPhone, iPad, iTouch,
and certain Mac computers.
Motorola also preemptively sued Apple in Delaware federal
court on Oct. 8, asking a judge to declare that it is not
infringing on certain Apple software patents.
Apple's choice to file suit in the Western District of
Wisconsin is noteworthy. More natural choices of jurisdiction
would have been the Northern District of Illinois near
Motorola's headquarters, Motorola's legal home of Delaware, or
Apple's home in the Northern District of California.
The venue Apple picked has been dubbed a "rocket docket" by
IP attorneys for its speedy trials and judicial efficiency. Two
of the court's justices, Senior Judge Barbara Crabb and
now-retired Judge John Shabaz, helped to build the court's
reputation with their strict schedules and no-nonsense styles.
Speed is crucial to plaintiffs in these cases, given
patents' limited lifetime. With strong ties to the University
of Wisconsin and the local high-tech sector, the court's jury
pool is also thought to favor patent holders and others trying
to enforce IP rights.
The main forum-of-choice for patent claimants in recent
years has been the Eastern District of Texas. At first, that
district attracted personal injury, product liability, and
tobacco suits with its pro-plaintiff juries and short-order
trials. Patent cases soon followed. But with plaintiff lawyers
flocking en masse to Marshall, Texas, clogging the court's
docket, patent lawyers have started to seek alternative forums
with less activity and faster resolution of cases.
The Western District of Wisconsin has emerged as a favorable
venue with a smaller docket, says Mark Kesslen, an IP litigator
at Lowenstein Sandler in Roseland, New Jersey. While he has not
litigated in the Wisconsin federal court, his law partner has
been involved in patent litigation there.
Kesslen says speed is the main factor driving patent holders
to Wisconsin federal court. Plaintiffs can take the time needed
to prepare their case while defendants are forced to catch up
after the suit is filed-on a shorter timeline in Madison court.
Kesslen says Apple likely chose the venue to place pressure on
In a study published last week in the AIPLA Quarterly
Journal called "Where to file your patent case," Stanford Law
School professor Mark Lemley analyzed the lawsuit data of the
33 most active patent district courts. He found that the
Western District of Wisconsin and the Eastern District of
Virginia are true "rocket dockets" where the average patent
trial is completed less than a year after the case was filed.
The federal court in Wisconsin ranked first in terms of time to
trial, time to resolution and third in the percentage of cases
that make it to trial. The district ranked only 28th with its
plaintiff win rate. Lemley found the best patent district for
plaintiffs overall to be the Middle District of Florida.
Apple declined to comment on its choice of venue for the
Motorola infringement suits. The company gives few clues in its
complaint aside from the claim that "Motorola is engaged in
substantial and not isolated activities within Wisconsin and
this judicial district." Apple may have chosen the Western
District of Wisconsin for a reason other than speed. Dennis
Crouch, a professor of the University of Missouri School of Law
and author of the patent law blog Patently-O, says Apple likely
chose the district as a way of avoiding Illinois and Delaware,
because Motorola recently sued Apple in those locales. Those
courts would likely have joined the cases, causing Apple to
forfeit its "plaintiff" status and assume a defensive position,
according to Crouch. He adds that it might have been
politically difficult for Apple to file in the Eastern District
of Texas, given the company's tendency to portray that venue as
a forum for so-called "patent trolls"-plaintiffs that sue to
enforce patents without actually making use of the patented
The cases are Apple Inc v. Motorola Inc et al, U.S. District
Court, Western District of Wisconsin (Madison), No.
3:10-CV-00661 and Apple Inc v. Motorola Inc et al, U.S.
District Court, Western District of Wisconsin (Madison), No.
3:10-CV-00662. Apple is represented by Godfrey & Kahn in
Madison, Wisconsin, and Weil, Gotshal & Manges in Redwood
Shores, California; Washington, D.C.; and New York. The
Delaware case is Motorola Mobility Inc v. Apple Inc et al, U.S.
District Court, District of Delaware (Wilmington), No.
10-CV-00867. Motorola is represented by Morris, Nichols, Arsht
& Tunnell in Wilmington, Delaware, and Quinn Emanuel Urquhart &
Sullivan in San Francisco, New York and Chicago.
(Reporting by Terry Baynes of Reuters Legal; Additional
reporting by Ernest Scheyder of Reuters)