1. SHOPPING: ISN’T THAT THE AMERICAN WAY? Mary B. Graham Morris, Nichols, Arsht & Tunnell LLP Wilmington, Delaware Symposium On Ethical Issues in Patent Law Catholic University of America Columbus School of Law March 29, 2007

2. 2  WHEN IS FORUM SELECTION “FORUM SHOPPING” ?

3. 3 FACTORS PLAINTIFFS CONSIDER IN FORUM SELECTION  RELATIVE EASE OF TRANSFER  FAVORIBILITY OF PROCEDURAL DEVICES  LIKELIHOOD OF SUMMARY JUDGMENT  TIME TO TRIAL  LENGTH OF TRIAL  JURY POOL  CHANCES OF WIN AT TRIAL AND AMOUNT OF DAMAGES  PREDICTABILITY

4. 4 DELAWARE  TRANSFER RELATIVELY LESS LIKELY FOR MERE CONVENIENCE REASONS  LESS RIGID ON CONTENTIONS  SUMMARY JUDGMENT NOT LIKELY  PACE IS MEASURED AND PREDICTABLE  TRIALS NOT OVERLY LONG  HIGH WIN RATE AND LEVEL OF DAMAGES  JURY POOL  WEALTH OF JUDICIAL EXPERIENCE

5. 5 Number of Patent Complaints Filed Per Judgeship Per Year 1/1/94-9/20/05 RankDistrict # Patent Complaints Filed Per Judgeship Per Year 1 Del., D. 24.3 2 Cal., N.D. 11.5 3 Wis., W.D. 10.5 4 Minn., D. 9.9 5 Cal., C.D. 8.8 6 Utah, D. 7.2 7 Cal., S.D. 7.0 8 Wash., W.D. 6.4 9 Ill., N.D. 6.1 10 Tex., E.D. 5.7

6. 6 OF PATENT JURY TRIALS (WHERE DAMAGES REQUESTED) WITH VERDICTS  1997 through September 30, 2004, 38 of 57 juries -- 67% -- awarded damages to the patentee.  2002 to September 30, 2005, 27 of 32 juries -- 84% -- awarded damages to the patentee.  October 1, 2005 – March 23, 2007, 10 of 11 juries – 91% -- patentee wins.