I believe he is arguing that E Texas should have caught that from the beginning. That therefore implies that E Texas is a horrible court. And that therefore the CAFC is more likely to overturn Folsom's decision. Now keep in mind, there is absolutely no other support for jacmyoung's view other than the E Texas court was found to make a bad error in this case and a prior one he mentioned. In only relates to TiVo in that jacmyoung's argument conflicts with E Texas and jacmyoung apparently thinks E Texas is a poor district court. Correct me if I am wrong, Jac. Regarding forum shopping, all lawyers do it. And yes ALL means ALL. The fact is both companies sell products in E Texas and that goes a long way in making it a justifiable court selection (although not necessarily the best).