Forum Selling in Germany: Supply-Side Effects in Patent Forum Shopping

Authors: Stefan Bechtold (ETH Zurich) and Jens Frankenreiter (ETH Zurich)

The relationship between legal systems and competition is a complex one. Competition among courts can lead to strategic behavior by market participants. Where court venue selection procedures are permissive, litigants often engage in forum shopping by bringing their case before the court thought most likely to provide a favorable judgment. Most of the existing research on forum shopping focuses on the incentives of litigants and the strategies litigants develop to forum-shop successfully. While such research assumes the existence of differences among court venues, the present project analyzes the other side of the forum shopping market: We are investigating to what extent competition among courts is driven by “forum selling” on the part of judges and courts. Our study focuses on patent litigation in Germany, Europe’s most important court system for patent litigation. Based on a qualitative empirical study, which is currently in progress, we plan to describe the incentives judges and courts have, and the strategies that are available to them to stimulate forum shopping. We hope our study will make a useful contribution not only to the debate on forum shopping in patent law, but also to the general debate on forum shopping and judicial decision-making.

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