Plaintiff's Choice of EDVA Venue Gets Little or No Deference
Two recent decisions out of the Norfolk Division of the U.S District Court for the Eastern District of Virginia highlight the Court’s increasing skepticism towards plaintiffs’ choice of Virginia as a forum for patent infringement claims that otherwise have no real connection with Virginia. In Adiscov, LLC v. Autonomy Corp., PLC, Civil Action No. 2:11cv201, Judge Rebecca Beach Smith granted a motion to transfer venue to the Northern District of California, finding that “though the district is the plaintiff’s home venue, the Eastern District as a forum has very little connection to the cause of action.” The Court focused on the fact that Adiscov is a non-practicing entity and that the center of the alleged infringing activity is San Francisco in concluding that “the plaintiff’s choice of forum does not warrant a strong presumption and instead counsels that transfer may well be proper.” Judge Smith’s Opinion can be found here.
A few days later, Senior Judge Henry Coke Morgan, Jr., granted a motion to transfer venue to the Southern District of Florida in Patent Licensing & Investment Co, LLC v. Green Jets, Inc., Civil Action No. 2:10cv421. Like Judge Smith, Judge Morgan found that the plaintiff’s choice of forum was entitled to little deference because, although plaintiff is located in the district, “[t]he inventor is not located in this district … [t]he alleged infringing activity is not occurring in this district … [and] [t]here is no evidence to suggest that Plaintiff is employing the ‘548 Patent in furtherance of a business enterprise in this district…” Judge Morgan’s opinion can be found here.
These cases, like Pragmatus AV, LLC v. Facebook, Inc., Civil Action No. 1:10cv1288, 2011 WL 320952 (E.D. Va. January 27, 2011), show that plaintiffs (particularly non-practicing entities) hoping to keep patent infringement cases in the EDVA cannot simply rely on the fact that they are formed or located in the district.
