Ben Stern Discusses Federal Circuit Ruling on Forum Selection Clauses in Law360Print PDF
Ben Stern, a partner in Nutter’s Litigation Department and a member of the firm’s IP Litigation practice group, commented on the Federal Circuit’s ruling that a broadly worded forum selection clause, whether it is part of a licensing agreement or even a deal not involving patents, can end up waiving companies' rights to America Invents Act reviews in Law360. In the article, “Fed. Circ. Forum Selection Ruling Serves As 'Cautionary Tale',” Ben said, “I do think it's a big deal that it said, 'forum selection clauses have teeth, and if there are consequences of the language you drafted, you've got to live and die by those consequences,' rather than [defer to] what the parties intended or thought they were doing.”
Ben added, “In most agreements, 90% of it is boilerplate, and you’re spending all your time fighting about the 10% that really matters. This decision says you have to fight about the 10% that really matters, but also make sure the other 90% doesn’t undo what you’re trying to do. … Forum selection clauses will be just another battleground and negotiating point that lawyers will have to focus on.”
According to Ben, contract drafters should have litigators review the language in a deal before anything is signed to help avoid worst-case scenarios. “The consequences of this are so dire from the standpoint of being precluded from filing IPR petitions,” Ben pointed out.