Bloomberg reports that Research In Motion [RIM] asked a federal court in Dallas [ND Tex] to rule that the BlackBerry doesn't infringe patents owned by Visto Corp., a Redwood Shores, California-based company that provides e-mail software to cell phone companies. The lawsuit was filed May 1, 2006 the first business day after Visto sued Research In Motion in federal court in Marshall, Texas [ED Tex]. Thus, RIM is seeking a DJ of noninfringement after Visto filed an infringement case.
The lawsuit will allow Research In Motion, whose U.S. headquarters is in the Dallas suburb of Irving, Texas, to contest which court will hear the case. Patent owners win more than 90 percent of jury trials in the district that includes Marshall. Closely held Visto won a verdict there last week against Seven Networks Inc.
Although Bloomberg presents the text: "The law is first come, first served -- it's basically a rush-to-the-courthouse law,'' said Brian Ferguson, a patent lawyer with McDermott, Will & Emery in Washington. Research In Motion's suit "smacks of forum shopping, which judges don't like," one notes that venue does NOT always go to the first filed case. I was once involved in a case with a small Pennsylvania defendant who was sued in federal court in Nevada on the basis of a trade show presentation. The Nevada location did not fly, even though first filed.
As noted on IPBiz, the Eastern District of Texas [ED Tex], and especially the court in Marshall, is known for patent litigation. Patent owners won 92 percent of jury trials held there since 1994, according to LegalMetric LLC, a St. Louis-based company that monitors the outcome of patent lawsuits.
Technology companies that have been sued in Marshall are pushing Congress to change the law to require that either the patent owner or the accused infringer have a physical presence in the district where a suit is filed. The current law says a patent suit can be filed anywhere an accused product is made, sold or used.
The new case is Research In Motion Ltd. v. Visto Corp., 06cv783, U.S. District Court for the Northern District of Texas (Dallas). The earlier case is Visto Corp. v. Research in Motion Ltd., 06CV181, U.S. District Court for the Eastern District of Texas (Marshall)
**UPDATE. Dec. 20, 2006. from the Globe and Mail:
A wireless software firm [Visto] suing several technology players over patent infringement, including Research In Motion Ltd., has won another important round in a Texas court.
A federal judge has awarded Visto Corp. double the damages a jury levied in April and upheld the verdict that said Seven Networks Inc. had infringed on three of its patents.
These patents also form the core of a suit Visto launched against RIM in the spring, claiming that the BlackBerry maker had willfully infringed on four of its patents used in the wireless transmission of email and other data.
On Dec. 19, 2006, Judge John Ward, of the District Court in Marshall, Tex., upheld the jury verdict and increased the award against Seven Networks to $7.7-million (U.S.).