Visto had filed Monday against RIM in the Eastern District of Texas for infringing four patents. Wednesday, RIM countersued in Dallas, the Northern District of Texas, for declaratory judgment of non-infringement. RIM seeks a change of venue from East Texas, where patent plaintiffs roll up victories as if playing with loaded dice - since 1994, 92% of jury trials in the Eastern District of Texas find for the plaintiff. RIM's U.S. headquarters are in the Dallas suburb of Irving.

What it not clear is how RIM expects to force the change of venue, since Visto filed first. Logically, the Dallas court would dismiss RIM's suit in light of the preexisting complaint filed by Visto. "The law is first come, first served -- it's basically a rush-to-the-courthouse law,'' observed Brian Ferguson, patent lawyer with McDermott, Will & Emery in Washington D.C. RIM's maneuver "smacks of forum shopping, which judges don't like.''