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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

I am new to this list, I arrived here by being interested in the Debian Women Project, so please forgive me if I am jumping in where my opinion is not wanted and if I am too long winded.  I have been trying to follow the recent conversation regarding choice of venue (aka forum selection clause) and I have a few thoughts...

We all seem to know that with respect to jurisdiction there are three rungs one must successfully clime to get into a court:
1)	subject matter jurisdiction
2)	personal jurisdiction (in personum/in rem)
3)	venue (which really falls under Per Jur)

>From what I understand courts will uphold venue provisions in the absence of unfairness under Carnival Cruise Lines, Inc, v. Shute (and other case law like Neirbo, etc) 
1)	if the defendant has purposefully waived their personal privilege of venue by agreeing to the terms set forth by another party  
2)	if the defendant does not raise the question of venue before arguing the merits of the case 

`*(note courts understand that no ?real bargaining? power exists for one party if the other states definite take-them-as-you-find-them-terms of use) 

So it might be reasonable to infer that forum selection with respect to patent, trademark, copyright claim cases would fall under FRCP 12 (b) (g) (h) and USC 28 sec. 1391.  I am going to do some thinking on the ?licensing? side of this as I am NOT certain if special licensing clauses exist with respect to particular venue clauses but I am willing to hedge that they do.  

I do know that in the ?Oracle case? AC Controls Co. Inc. v. Pomeroy Computer Resources, Inc the  court noted that ?Under 28 U.S.C. § 1406(a), ?the presence of a forum selection clause does not, in and of itself, make venue [a venue other than the one in the agreement] improper.??  

The court went on to note that, and here is the biggie folks,

?the presumption of [validity] that forum selection . . . provisions enjoy is not absolute, [rather such provisions] may be overcome by a clear showing that they are 'unreasonable under the circumstances.'" Allen, 94 F.3d at 928

The fourth Circuit in the above,  Allen, reasoned choice of venue "provisions may be found unreasonable if 
(1) their formation was induced by fraud or overreaching; 
(2) the complaining party 'will for all practical purposes be deprived of his day in court's because of the grave inconvenience or unfairness of the selected forum;
(3) the fundamental unfairness of the chosen law may deprive the plaintiff of a remedy; or 
(4) their enforcement would contravene a strong public policy of the forum state." 

The cites are as follows Allen, 94 F.3d at 928 (citing Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595, 113 L. Ed. 2d 622, 111 S. Ct. 1522 (1991) and The Bremen, 407 U.S. at 12-13). 

There was also mention of Federal Rules applying when considering forum selection.  I believe it pertains to USC 28 where there are special rules that govern specialized cases like patent, trademark and copyright.  These special venue rules limit 'where' claims arising from these specialized subjects (patent/copyright etc.) can be brought.  

Rule patent infringement claims ?may? be brought in districts where 
1)	the defendant has his/her residence OR where the acts of infringement occurred AND
2)	the defendant has an establish place of regularly conducted business
*(note residence does not always mean domicile)

I fully understand that ?may? and ?shall? are different terms however, and I will check on this, but I am pretty sure ?may? in this instance is indicating ?required.?  Again I need to confer with someone to see if licensing agreements fall outside of these specialized rules, but I don?t think they strictly do.  

In conclusion it seems that just because a venue/forum selection clause exists does not in-and-of-itself mean that it will hold up in court.  Because there are many other factors (like minimum contacts, Long-Arm Statutes, foreseeability, superseding legislative laws, service of process, precedent within the Federal circuit, etc) that are considered when deciding if venue (forum clause or no) is ?fair and reasonable.?  

I welcome questions/rants etc.   


Also, I must mention that I am in law school and as such I am obligated to place this disclaimer on anything I post regarding legal matters:

The information that I have presented here is not in any way intended to nor constitutes the practice of law or giving of legal advice, nor is it an offering of legal services, nor should the information presented here be relied on in any way. 

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