Intuitive Surgical, Inc. v. California Institute of Technology (PDF) Judge Wilken Decided April 18, 2007 Caltech had a meeting with Intuitive to offer a license. According to Intuitive, Caltech accused Intuitive of patent infringement and threatened suit. That same day, after the unsuccessful license meeting, Caltech sued Intuitive in the Eastern District of Texas. A mere two hours later Intuitive filed a declaratory judgment action in ND Cal. Caltech argued for either a stay, a dismissal, or a transfer. Intuitive argued:

that the first-to-file rule should not apply because it [Intuitive] filed suit just two hours after Caltech, and that if the first-to-file rule does apply, an exception is warranted because Caltech engaged in forum shopping.

Judge Wilken noted that there are exceptions to the first-to-file rule, and one may or may not apply in this case. Either way, the analysis and decision should be left to the court in the first-filed action. That two hour difference in getting the paper work in resulted in the decision being left to the Eastern District of Texas (known for not transferring cases). Too bad they didn�t take the time zones into effect, it would have been a tie!