Rambus Inc., 645 F.3d at 1332. Compare VideoShare, LLC v. Google, Inc., Civil Action No. 13-990 GMS, 2014 WL 1338713, at *2 n.2 (D. Del. Apr. 1, 2014) ("In light of the fact that the Massachusetts court had not issued a ruling unfavorable to [plaintiff, in a related case] at the time [plaintiff] filed the Delaware actions, the Court is not persuaded that [plaintiff] was 'forum shopping' or seeking any improper advantage [by filing a further suit in this District, as opposed to in federal court in Massachusetts]"), and Cellectis S.A. v. Precision Biosciences, Inc., 858 F. Supp. 2d 376, 385 (D. Del. 2012) ("[T]he court declines to characterize a [plaintiff's] choice of venue as 'forum shopping' when, by moving to transfer venue, a defendant is doing the same thing—choosing a venue that it believes to be more favorable to its claims for whatever reason."), with Ross v. Institutional Longevity Assets LLC, Civil Action No. 12-102-LPS-CJB, 2013 WL 5299171, at *8-9 (D. Del. Sept. 20, 2013) (finding that transfer of a case was warranted in part because plaintiffs' filing in this District amounted to "forum shopping"—in that plaintiffs had previously received unfavorable decisions in a related matter in the transferee district prior to filing the instant suit, similar issues to those previously decided in the transferee district were likely to arise in the instant case, and where mirror image litigation was filed in the transferee district just after the filing of the instant case), report and recommendation adopted, 2013 WL 5613998 (D. Del. Oct. 11, 2013).
It applies to mirror-image litigation that, if resulting in two conflicting judgments, may require separate appeals. See Cellectis S.A. v. Precision Biosciences, Inc., 858 F.Supp.2d 376, 384 (D.Del.2012) (citing Hazeltine, 122 F.2d at 930). The Indiana action asserts infringement of the Belden patents, which are the same patents named in the declaratory judgment claims of the instant action.
"[A] claim for patent infringement arises wherever someone has committed acts of infringement, to wit, 'makes, uses, offers to sell, or sells any patented invention' without authority." Cellectis S.A. v.Precision Biosciences, Inc., 858 F. Supp. 2d 376, 381 (D. Del. 2012) (quoting 35 U.S.C. § 271(a)). When assessing where a claim for patent infringement arose, the district court will in part focus on the activity surrounding the production, design and manufacture of the infringing product.
Even to the extent that a party makes such a showing, it is worth keeping in mind that the practical impact of this factor is limited, in light of the fact that so few civil cases today proceed to trial (and at trial, so few fact witnesses testify live). Cellectis S.A. v. Precision Biosciences, Inc., 858 F. Supp. 2d 376, 382 n.6 (D. Del. 2012); Altera, 842 F. Supp. 2d at 757-58. Neapco argues that this factor weighs "heavily" in favor of transfer because there are a number of third-party witnesses with relevant testimony who are based in the Eastern District of Michigan. (D.I. 14 at 11-12; D.I. 22 at 7) More specifically, Neapco states that likely Michigan-based third-party witnesses include three named inventors of the patents-in-suit, two employees of Caraustar (Neapco's third-party manufacturer of liners) and two employees of General Motors ("GM"), Neapco's third-party customer (one of whom, David Schankin, is also a named inventor).
Id. And as the Court noted above, the appropriate focus as to this first Jumara private interest factor is on the strength and legitimacy of Plaintiff s reasons for filing suit in this District. Cf.In re Amendt, 169 Fed.Appx. 93, 96 (3d Cir.2006) (citing Jumara and, in examining the first two private interest factors, considering the reasoning behind the parties' choices to litigate in the respective fora, and concluding that because elements of the claims “arose in [plaintiffs' preferred forum and defendant's preferred forum,]” then the weight given to these two factors effectively cancelled each other out); Cellectis S.A. v. Precision Biosciences, Inc., 858 F.Supp.2d 376, 381 (D.Del.2012) (finding that where the foreign corporation plaintiff filed suit in Delaware for legitimate reasons, including the fact that the defendant was a Delaware corporation, the factor weighed against transfer). Of course, if a plaintiff like Papst has no ties to Delaware and is based overseas, those facts will certainly be relevant in the analysis of other Jumara factors, as is further discussed below.
It is true that the practical impact of this factor is limited, in light of the fact that so few civil cases today proceed to trial (and at trial, so few fact witnesses testify live). Cellectis S.A. v. Precision Biosciences, Inc., 858 F. Supp. 2d 376, 382 n.6 (D. Del. 2012); Altera, 842 F. Supp. 2d at 757-58. And, as Plaintiffs note, as to many of the third-party witnesses Defendant references, Defendant did not cite to specific evidence indicating that the witnesses would actually be unlikely to participate in a trial in Delaware.
As an initial matter, our Court has noted that the practical impact of this factor is limited, in light of the fact that so few civil cases today proceed to trial (and at trial, so few fact witnesses testify live). Cellectis S.A. v. Precision Biosciences, Inc., 858 F. Supp. 2d 376, 382 n.6 (D. Del. 2012); Altera, 842 F. Supp. 2d at 757-58. A party's ability to put forward testimony of witnesses of its choosing at trial is, of course, important; these cases simply recognize that the impact of this factor has to be tempered a bit by the unlikely event of a trial's occurrence.
This general rule, however, "does not supersede the inquiry into the balance of convenience" under 28 U.S.C. § 1404(a). Zimmer, 478 F. Supp. 2d at 989; see also Cellectis S.A. v. Precision Biosciences, Inc., 858 F. Supp. 2d 376, 380 (D. Del. 2012) (noting that a "court must take into consideration the 'general' rule that 'favors the forum of the first-filed action'" in addition to its § 1404 analysis (quoting Genentech, Inc. v. Eli Lilly & Co., 998 F.2d 931, 937038 (Fed. Cir. 1993), overruled on other grounds by Wilton v. Seven Falls Co., 515 U.S. 277 (1995))). This statute provides:
" "[A] claim for patent infringement arises wherever someone has committed acts of infringement, to wit, 'makes, uses, offers to sell, or sells any patented invention' without authority." Cellectis S.A. v. Precision Biosciences, Inc., 858 F. Supp. 2d 376, 381 (D. Del. 2012) (quoting 35 U.S.C. § 271(a)); Wacoh Co. v. Kionix Inc., 845 F. Supp. 2d 597, 602 (D. Del. 2012). When assessing this factor, however, our Court has often focused in particular on the activity surrounding the production, design and manufacture of the allegedly infringing product.
" Id. "[A]s a matter of law, a claim for patent infringement arises wherever someone has committed acts of infringement, to wit, 'makes, uses, offers to sell, or sells any patented invention' without authority." Cellectis S.A. v. Precision Biosciences, Inc., 858 F. Supp. 2d 376, 381 (D. Del. 2012) (quoting 35 U.S.C. § 271(a)); see also Smart Audio Techs., 2012 WL 5865742, at *7. Accordingly, where an accused infringer operates on a national or global scope, this factor is generally neutral.