Transfers: a common trend in false marking actions
By: Jim Lennon
The District of Delaware is one of the latest courts to grant a false marking defendant's request for transfer. In Brinkmeier, et al., v Exergen, Civ. No. 10-176-SLR, the court granted defendant's request to transfer the action to the District of Massachusetts where an action involving the same patents is pending, "although it is not a related first-filed action." Id. at 6. The court was further persuaded by the fact that "Exergen is not a Delaware corporation and that Delaware represents a very small market for Exergen's products." Id. While the court was not persuaded by Exergen's arguments regarding the inconvenience of litigating in Delaware, particularly "given electronic discovery, electronic means for recording depositions, and the fact that trials go forward in less than 20% of all cases," the court found, "[nevertheless ... [that] Massachusetts is the more appropriate trial forum for this case." Id.
The following are just some of the recently reported decisions transferring false marking actions pursuant to 28 USC 1404(a): U.S. ex rel. Heathcote Holdings Corp., Inc. v. Leapfrog Enterprises, Inc., Civ. No. 10-C-1471, (N.D.Ill., December 27, 2010); Seely v. Cumberland Packing Corp., Civ. No. 10-CV-02019-LHK (N.D.Cal., December 20, 2010); Just Intellectuals, PLLC v. Clorox Co., Civ. No. 10-12415 (E.D.Mich., December 10, 2010); Hollander v. Hospira, Inc., Civ. No. 2:10-CV-00235-JD (E.D.Pa., November 22, 2010); Simonian v. Monster Cable Products, Inc., Civ. No. 10-C-1269 (N.D.Ill., November 22, 2010); Clip Ventures LLC v. U-Dig-It Enterprises, Inc., Civ. No. C-10-3227 CRB (N.D.Cal., October 25, 2010); U.S. v. T.F.H. Publications, Inc., Civ. No. 2:10CV437 (W.D.Pa., October 20, 2010); Lightspeed Aviation, Inc. v. Bose Corp., Civ. No. 10-CV-239-BR (D.Or., October 01, 2010); Unique Product Solutions, Ltd. v. Otis Products, Inc., Civ. No. 5:10CV1471 (N.D.Ohio, September 22, 2010).
In addition, although no written opinions have yet issued, several transfers have been orally granted in the Eastern District of Texas as described by Michael Smith here: http://mcsmith.blogs.com/eastern_district_of_texas/2011/01/tyler-false-marking-cases-heard-at-scheduling-conferences.html ("the five cases in which defendants sought transfer were transferred ... .").
The following are just some of the recently reported decisions transferring false marking actions pursuant to 28 USC 1404(a): U.S. ex rel. Heathcote Holdings Corp., Inc. v. Leapfrog Enterprises, Inc., Civ. No. 10-C-1471, (N.D.Ill., December 27, 2010); Seely v. Cumberland Packing Corp., Civ. No. 10-CV-02019-LHK (N.D.Cal., December 20, 2010); Just Intellectuals, PLLC v. Clorox Co., Civ. No. 10-12415 (E.D.Mich., December 10, 2010); Hollander v. Hospira, Inc., Civ. No. 2:10-CV-00235-JD (E.D.Pa., November 22, 2010); Simonian v. Monster Cable Products, Inc., Civ. No. 10-C-1269 (N.D.Ill., November 22, 2010); Clip Ventures LLC v. U-Dig-It Enterprises, Inc., Civ. No. C-10-3227 CRB (N.D.Cal., October 25, 2010); U.S. v. T.F.H. Publications, Inc., Civ. No. 2:10CV437 (W.D.Pa., October 20, 2010); Lightspeed Aviation, Inc. v. Bose Corp., Civ. No. 10-CV-239-BR (D.Or., October 01, 2010); Unique Product Solutions, Ltd. v. Otis Products, Inc., Civ. No. 5:10CV1471 (N.D.Ohio, September 22, 2010).
In addition, although no written opinions have yet issued, several transfers have been orally granted in the Eastern District of Texas as described by Michael Smith here: http://mcsmith.blogs.com/eastern_district_of_texas/2011/01/tyler-false-marking-cases-heard-at-scheduling-conferences.html ("the five cases in which defendants sought transfer were transferred ... .").
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