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Offensive Venue: The Curious Use Of Declaratory Judgment To Forum Shop In Patent Litigation, Chester S. Chuang

Chester S. Chuang

Forum shopping is widespread in patent litigation because there are clear differences in outcomes among the various federal districts. An accused patent infringer that is sued in a particularly disadvantageous forum can file a motion to transfer to a more convenient forum, but the general consensus is that such motions are difficult to win. Accordingly, accused infringers often file declaratory judgment actions to forum shop. Such actions allow accused infringers to preemptively sue the patent owner in the accused infringer’s preferred forum, and are considered by many to be the best way for accused infringers to play the forum shopping …