The case of the day is Girafa.com, Inc. v. Smartdevil, Inc., 728 F.Supp.2d 537 (D.Del. 2010). Girafa.com, the assignee of U.S. Patent No. 6,864,904, sued Smartdevil, a Québec company, and several others for patent infringement. A bailiff personally served the summons and complaint on Smartdevil’s president, Stephane Lim. (There was some dispute whether the documents were delivered to the right person, as the return of service said “Stephen” rather than “Stephane”, but the court didn’t have the time of day for that argument). Girafa and Smartdevil filed several stipulations extending Smartdevil’s time to answer the complaint, but in the end, rather than answer, Lim submitted a letter to the court requesting that judgment not enter until Girafa had proved the validity of the patent (plainly Lim was unschooled in U.S. patent law!) and representing that he could not afford a U.S. lawyer. The court entered Smartdevil’s default, but it declined to enter a default judgment until the case against the other defendants was resolved. (Parenthetically, this was the proper approach under Frow v. De La Vega, 82 U.S. 552 (1872), in order to avoid inconsistent judgments). The court construed the patent claims in such a way as to make it clear that some of the claims were invalid—as Girafa had suggested—and that the other defendants did not infringe the patent in any event. Girafa stipulated to the dismissal of is claims against the other defendants but then sought entry of default judgment against Smartdevil. Smartdevil argued that the service of process had been improper because Girafa had not complied with the requirements of Article 5 of the Hague Service Convention.

The simple answer to this argument is that it is not necessary to effect service under Article 5 by means of the destination state’s central authority. Article 10(c) provides that unless the destination state objects, parties are free to “effect service of process directly through the judicial officers, officials or other competent persons of the State of destination.” Canada has not objected to that method of service. Incidentally, note that Article 10(c) uses the words “effect service of process.” Thus the ambiguity that has arisen about Article 10(a), which permits the use of postal channels to “send”–but perhaps not to “serve”–judicial documents does not arise. In any event, Girafa also served the documents by mail, and the court took the position that the Convention permits that method of service.

Nor did the failure to translate the documents into French render the service invalid, since Québec requires translation into French only when the service occurs under Article 5, and then, only when the recipient does not understand the language in which the documents were originally written.

One lesson of the case is that correct service of process under the Hague Service Convention is not always enough to ensure a default judgment if the defendant fails to answer. The judge, weighing the appropriate factors, vacated Smartdevil’s default and gave it a second chance to defend the case on the merits.