Partner Andrew Langsam, a member of Pryor Cashman’s IP and Litigation Groups, spoke with Law360 for its story, “3 Questions To Ask Before You Try To Transfer a Case.”

Transferring a case can lead to a successful outcome, but it can be difficult to convince a judge to send a suit to another jurisdiction. One factor to consider is how favorable the law will be in a particular jurisdiction. Langsam had a patent infringement case transferred from Texas’ Eastern District to a California federal court by the district court itself, which was unusual for that district.

“There were many factors we considered in making the motion to transfer, but one of them is the perception that has been around for several years, which is that the Eastern District of Texas is a very pro-plaintiff patent jurisdiction,” Langsam said. “So one of the factors we considered was, we were representing defendants.”

The local rules of the various courts ought to be considered as well, Langsam continued. "If for example, as a defendant, you want the case to maybe take longer ... so you have more opportunity to do discovery and find some new great prior art, maybe you would not make the motion to transfer into the Eastern District of Virginia because it has that ‘rocket docket,’ which means everything is expedited,” he said.

When Langsam succeeded in getting the patent infringement case transferred from Texas’ Eastern District to California, he said they pointed out to the judge in Texas that the plaintiff had manufactured an argument to make a claim to venue in Texas.

They argued to the Texas judge that the plaintiff corporation had been formed only two days before the complaint was filed and that they discovered — after sending a private investigator to the office the company was renting — that no one had ever picked up the office keys or any of the mail, all of which was junk mail, he said.

Langsam said that when the judge transferred the case, he referenced in his decision the absence of doing real business in Texas, as well as the absence of witnesses and documents and the fact that the defendants and plaintiff patentee were California residents.

"We wanted a fair to chance to litigate on the merits and not be under the Texas court docket system nor the good ole boy network of attorneys down there," Langsam said.

To read the article, which appeared in the September 9, 2015 edition of Law360, please click here.