Opposition to Venue Reform Misses Target

By Matt Levy
August 4, 2016

Missed targetA group of 28 law professors just sent a letter to Congress opposing patent venue reform. As I’ll explain below, however, their points really don’t justify delaying venue reform.

As you probably know, more patent cases are brought in the Eastern District of Texas than any other judicial district in the country. Businesses in Tyler, Texas even advertise that fact. While the situation may be profitable for Tyler and Marshall, Texas, the Eastern District has a number of rules that make cases unnecessarily expensive for defendants and give patent trolls a huge amount of leverage.

Senators Flake, Gardner, and Lee introduced the VENUE Act to try to address this problem. The bill would modify the venue rules so that a defendant could only be sued in a district where the defendant is incorporated or has a principal place of business, or a district which has a real connection to the patent. Collen Chien and Mike Risch found that the bill would work with respect to ending the Eastern District’s dominance, although cases would end up concentrated in the Districts of Delaware and Northern California.

A few weeks ago, a group of 45 law professors wrote a letter describing the problems with having so many patent cases in the Eastern District of Texas. They argued that:

One reason for the disproportionate number of patent filings in the Eastern District of Texas is that the district employs procedural rules and practices that attract plaintiffs, including by delaying or denying the ability of defendants to obtain summary judgment to terminate meritless cases early. For example, the district requires parties seeking summary judgment in patent cases to first seek permission before filing any summary judgment motion, the effect of which is to delay and deter early resolution of cases.

While parties can seek transfer out of the district, some NPEs have opened offices in the district simply for the purpose of bolstering their arguments to stay in their preferred venue. The average grant of transfer in this venue took over a year (490 days), and the average denial of a transfer motion took 340 days, meaning that even cases that are ultimately transferred remain pending in the district for nearly a year. Local discovery rules permit discovery to go forward even while a motion for transfer is pending, so even successfully moving to transfer only partially relieves the expense of litigating in a distant venue and the burden on the court.

The disproportionate number of patent plaintiffs—and NPEs in particular—bringing cases in a single venue ultimately results in wasted judicial resources, as more of those cases are overturned on appeal. For accused infringers, the costs of innovation are increased when they have little or no connection to the venue and are forced to litigate from a distance. The harm caused by abuse of the system and the resulting loss of trust in the uniformity and justness of the U.S. patent law system is unmeasurable.

A dueling group of professors responded with their own letter opposing venue reform. The points they make really don’t hold up, however.

Proponents for the VENUE Act argue that “[t]he staggering concentration of patent cases in just a few federal district courts is bad for the patent system.”[4] As an initial matter, data indicates that filings of patent lawsuits in the Eastern District of Texas have dropped substantially this year—suggesting a cautious approach until trends have stabilized.[5]

First, the original group of 45 professors did not endorse any particular bill; they wrote to endorse patent venue reform.

It is true that filings in the Eastern District have dropped quite a bit for the first half of 2016 compared to the same period last year. That sounds meaningful, except that 2015 seems to have been anomalously high for patent filings in the Eastern District of Texas. 2015 had 78% more patent cases filed than 2014. A drop from such a large increase isn’t surprising; it’s a regression toward the mean. And a number of cases seem to have been filed in November 2015, just before major changes in the Federal Rules of Civil Procedure took effect; these may have been time-shifted from early 2016. There were 467 patent cases filed in the Eastern District of Texas in November 2015. That’s almost a fifth of all cases filed in 2015.

The fact is, the Eastern District of Texas still accounts for nearly 40% of all patent filings. No other district comes close. There’s nothing suggesting caution in those numbers.

Moreover, what difference does it make if filings have dropped? The rules in the Eastern District of Texas heavily favor patent owners and place large pressures on defendants to settle quickly. There are still hundreds of cases a year being filed there that have no real ties to the district.

Contrary to claims by its proponents, legislative proposals like the VENUE Act would not spread lawsuits throughout the country. In fact, these same proponents have found that restricting venue in a manner similar to the VENUE Act would likely result in concentrating more than 50% of patent lawsuits in just two districts: the District of Delaware (where most publicly traded corporations are incorporated) and the Northern District of California (where many patent defendants are headquartered).[6] Instead of widely distributing patent cases across numerous districts in order to promote procedural “fairness,” the VENUE Act would primarily channel cases into only two districts, which happen to be districts where it is considered much more difficult to enforce patent rights.[7]

The districts where cases would end up aren’t “districts where it is considered much more difficult to enforce patent rights.” They happen to be districts with some actual relation to the particular case, instead of being one-stop shop for patent trolls. As the letter admits, the concentration of cases would be in districts where most public companies are incorporated (Delaware) and where many tech companies are headquartered (Northern District of California). They’re also districts that aren’t so biased that they literally advertise how “friendly” they are to patent owners.

Proponents for the VENUE Act have argued that the Eastern District of Texas is reversed more often by the Federal Circuit than other jurisdictions, claiming that in 2015 the Federal Circuit affirmed only 39% of the Eastern District of Texas’s decisions but affirmed over 70% of decisions from the Northern District of California and District of Delaware.[8] These figures are misleading: they represent only one year of data, mix trials and summary judgment orders, and fail to take into account differences in technology types and appeals rates in each district. In fact, a more complete study over a longer time period by Price Waterhouse Coopers found that the Eastern District of Texas affirmance rate is only slightly below the national average for all districts.[9]

It’s not clear why one year of data is “misleading,” but regardless, the PWC study has the same alleged flaws. And in the PWC study, the Eastern District of Texas was affirmed 42% of the time, while Delaware was affirmed nearly 60% of the time. The Eastern District of Texas was the worst in terms of affirmance of districts shown in the PWC study.

The Federal Circuit recently confirmed in In re TC Heartland (Fed. Cir. Apr. 29, 2016) that 28 U.S.C. § 1400(b) provides that a corporate defendant in a patent case—like corporate defendants in nearly all other types of cases—may be sued in any district in which personal jurisdiction lies. Constitutional due process requires a “substantial connection” between the defendant and forum.[10] Thus, contrary to its title and the claims of its proponents, the VENUE Act does not re-establish a “uniform” litigation system for patent rights by requiring substantial ties to the forum. Instead, the Act thwarts the well-established rule that plaintiffs can bring suit in any jurisdiction in which a corporate defendant has committed substantial violations of the law.[11]

These are non sequiturs. Whether the current venue statute (as interpreted by the Federal Circuit) comports with due process is not the question. The question is whether the case is in an appropriate forum.

The last footnote in the paragraph cites the case Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), which is an interesting choice. Gulf Oil was a dispute about a fire in a warehouse in Virginia, brought by a citizen of Virginia in a New York court. The district court in New York declined to take the case and transferred it to Virginia. The Supreme Court agreed with the district court that New York was a forum chosen in order to inconvenience the defendant, and therefore transfer was proper.

The VENUE Act would raise costs for many patent owners by requiring them to litigate the same patent against multiple defendants in multiple jurisdictions, increasing patent litigation overall. In recent years, the America Invents Act’s prohibition on joinder of multiple defendants in a single lawsuit for violating the same patent has directly resulted in increased lawsuits and increased costs for patent owners.[12] Moreover, the VENUE Act would also result in potentially conflicting decisions in these multiple lawsuits, increasing uncertainty and administration costs in the patent system.

The complaint here is that under the VENUE Act, a patent owner might not be able to cost-effectively sue a lot of companies. That’s not a bug, it’s a feature. Why should defendants have to litigate in a court in the middle of nowhere just to make it more affordable to file dozens of complaints?

The VENUE Act encourages the manipulation of well-settled venue rules across all areas of law by the self-serving efforts of large corporate defendants who seek to insulate themselves from the consequences of violating the law. By enacting the VENUE Act, Congress would send a strong signal to corporate defendants that they can tilt the substantive playing field by simply shifting cases to defendant-friendly jurisdictions.

The alternative is the status quo, where patent owners can file suit in a court so biased towards plaintiffs that the locals advertise that fact.

There is simply no reason for so many patent cases to wind up in a district with so little relation to those cases. Basic principles of equity and justice don’t vanish just because a patent is involved. The court hearing a patent case should have a real interest in the case, just like any tort or contract case.

The Eastern District of Texas has literally created a local industry of patent litigation, intentionally or not. Even local businesses acknowledge it and exploit it.

Patent venue reform is long overdue, and it’s something that Congress can and should get done.

The Author

Matt Levy

Matt Levy is Patent Counsel at the Computer and Communications Industry Association, where he handles legal, policy advocacy, and regulatory matters related to patents and is lead blogger for CCIA’s Patent Progress. He is recognized as an expert on patent litigation reform and is cited and quoted widely on the issue. Matt joined the CCIA in 2013 from private practice, where he got first-hand experience in both patent prosecution and patent litigation, including defending clients against patent assertion entities.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 21 Comments comments.

  1. Anon August 4, 2016 10:42 am

    What “doesn’t really hold up” is the fact that the first group does not address the “rogue district” and what that district is doing.

    If the “rogue district” is misbehaving, then the “real reform” would point blank address the behavior that is the misbehavior, correct it, and then apply the corrections throughout the judicial system.

    But that is expressly NOT what that first group is attempting to do.

    Instead – and as pointed out by the second group – the changes merely favor the larger (more monied) interests and do nothing to address any problems in the “rogue districts.”

    There is a phrase that fits: follow the money.

    Use that phrase with an ample helping of critical thinking and this article – and the efforts of the first group of academics – falls away in light of what the second group bring to the table.

  2. Independent Inventor August 4, 2016 12:13 pm

    Gee, and aren’t we all so surprised: This puff piece is written by none other than … wait for it … the guy who represents the largest cabal of innovation robbers and patent pirates the world has ever known.

  3. Curious August 4, 2016 12:52 pm

    the guy who represents the largest cabal of innovation robbers and patent pirates the world has ever known
    LOL. The Facebooks and Googles of the world already have the person in the top spot at the USPTO in their hip pocket and have been lobbying the administration to continue to appoint more anti-patent judges to the Federal Circuit. They’ve lobbied (and received from) Congress the AIA (America Infringes Act) “patent death squads.” They have a huge financial advantage against any small inventor (automatically labeled a “patent troll” regardless of the circumstances) who wants to go up against them. Now they want to force inventors to sue in the “home field” of these mega-infringers. They are certainly practitioners of the “golden rule” — i.e., those that have the gold make the rules.

    It is no wonder why the likes of Facebook and Google generate incredible profit margins — easy to do when you don’t have to pay for the technology you misappropriate.

    Let’s not kids ourselves, venue reform is all about tipping the scales of justice more (than it already is) towards infringers. These infringers practice “efficient infringement” because they know that there is little any small-time inventor can do to stop them.

    It’s not clear why one year of data is “misleading,”
    Didn’t take statistics in college I see. Also, by only working with “one year of data” a question is raised as to whether that “one year” was cherry-picked to show the desired result. Really, you are writing on a blog heavily populated by patent attorneys (i.e., people with a heavy science/math backgrounds) and you don’t expect us to pick up on this s__?

    Why should defendants have to litigate in a court in the middle of nowhere just to make it more affordable to file dozens of complaints?
    If we have to pick one side, do we err on the side of the alleged wrongdoer and do we err on the side of the person that was wronged? I see from your comments that you would pick the side of the alleged wrongdoer. Personally, I would go the other way.

    The Eastern District of Texas has literally created a local industry of patent litigation
    I’ve asked this question before, and it is worth asking again. What about ED of TX that makes it a hotspot for patent litigation? Based upon the answer, is what they are doing good or bad? You presume bad, but I would rather have that debate. If what the ED of TX is good, then perhaps other venues should adopt the same rules as the ED of TX. In that situation, then there would be less venue shopping. Alternatively, if what the ED of TX is doing wrong, then perhaps the easier approach would be to have the ED of TX change.

    The court hearing a patent case should have a real interest in the case, just like any tort or contract case
    BTW — there is nothing preventing a motion to transfer venue from being filed, and I know that the Federal Circuit has reversed denials of said motions in the ED of TX. As a matter of fact, filing a motion to transfer venue is standard procedure for just about any defendant in a patent lawsuit. As such, if venue is improper, venue can be changed (and these types of motions are frequently granted by the courts).

  4. Edward Heller August 4, 2016 6:14 pm

    “There is simply no reason for so many patent cases to wind up in a district with so little relation to those cases. Basic principles of equity and justice don’t vanish just because a patent is involved. The court hearing a patent case should have a real interest in the case, just like any tort or contract case.”

    Balderdash.

    All IPRs are in one court — the USPTO. Is this unfair? Why is it that we do not even consider state long arm statutes when deciding this question?

    The Federal Circuit, that hears all patent appeals, is in D.C. The patent owner himself may live in Hawaii. Consider the distance. Is this unfair however?

    Europe has a Unified Patent Court that hears all patent cases. Set in Paris — how unfair is that?

    We have long considered something similar in the US — a national patent court. Would such a court deny due process? Why are we even considering STATE long arm statutes when patents and patent infringement are national. There is a screw loose somewhere.

    We all known the game being played here and it is this: The infringer lobby is trying to get patent cases in their home courts where judges and juries will favor them.

    But, clearly there is no real problem in having most if not all patent cases in one “national” court provided that the court has the resources to handle them. But, I do think the ED Tex. many now have a resource problem.

  5. Anon August 4, 2016 9:27 pm

    Here’s a suggestion: take what happens in the Texas district, and make it mandatory that all other districts do likewise.

    End of forum shopping.

  6. IPdude August 4, 2016 9:29 pm

    There are shills in this world. Mr. Levy, you are clearly a shill for the anti-patent establishment. Credit to Gene for giving you a voice on this platform. But pretty clear who’s paying your bills. Stay righteous.

  7. Matt Levy August 4, 2016 11:14 pm

    I think the main place I disagree with you all is this idea of an “infringer lobby.” With rare exceptions, the companies who fight infringement claims honestly believe they don’t infringe a valid patent. They are also entitled to due process.

    The rules and procedures of the Eastern District are strongly biased against defendants facing PAEs. They have to produce documents almost immediately, they have little chance of winning a motion to transfer or motion to dismiss, and summary judgment motions aren’t even considered most of the time. Their witnesses and documents are nowhere near the district, and any infringement that might have occurred there is likely de minimis. The pressure to settle is enormous.

    You all seem to assume that every large company is guilty of willful infringement of every patent asserted against it. If that assumption were true, I would probably agree with you on venue.

    But it isn’t so I don’t.

  8. Anon August 5, 2016 6:39 am

    It is beyond polly anna not to “believe in an infringer lobby.”

    You lose even more credibility with a statement like that.

  9. Edward Heller August 5, 2016 10:55 am

    Mr. Levy, there is an infringer lobby and do not deny it.

    That aside, there may be a problem with the ED Tex, but it has nothing to do with having no relation to the parties. That simply makes it a neutral playing field which everyone should agree is fair, not unfair.

    We actually need on national patent court. Patents are national and there is no reason at all to think of patent cases as STATE cases. Just for example, we have one national tax court.

    Back to the ED Tex., the asserted problem with that court are its rules. Now Congress does have control over Rules and should address any perceived abuses of the ED Tex that unnecessarily drive up litigation costs. But do not deny patent owners a neutral forum.

  10. Paul F. Morgan August 5, 2016 11:01 am

    I agree with this article, and I do not represent any interested party. These professors represent that N.D. CA is anti-patent-owner compared to the E.D.TX. First, as they should know, that is not relevant to the basic concept of venue, which is supposed to be about the convenience to both parties and the court. Secondly, the really important difference between N.D. CA and E.D.TX is not what this letter alleges. [Note, for example, that Apple has certainly had N.D. CA success in enforcing its patents.] The important difference is that the N.D. CA requires both parties to show that they have a case, and specifying what it is, up front, rather than allowing unrestrained discovery costs on undefined infringement allegations right up to trial dates years later, forcing many companies to settle just to avoid millions in legal costs. E.D.TX has effectively become a remotely accessible district of California for the many California high tech firms sued there, even though the documents, witnesses and attorneys are all in N.D. CA. [Which is what venue is supposed to be about, not which district is supposedly better for one side or the other.] Even in that [irrelevant] regard, the actual patent owner win rate for the very few defendants willing to pay E.D. TX discovery and other legal costs through trial and appeal [rather than “settle”] is not that good any more. See the statistics regularly reported on Michael Smith’s E.D. TX blog. E.g., in April 2014 it reported on “..the 2013 patent verdicts in the Eastern District of Texas and found that Eastern District juries rendered verdicts in favor of accused infringers [defendants] in 10 out of 14 cases, and split evenly at one for each side in the two invalidity–only trials.”
    One should expect better from so many academicians.

  11. Curious August 5, 2016 12:26 pm

    With rare exceptions, the companies who fight infringement claims honestly believe they don’t infringe a valid patent.
    Ahh … every defendant says that they don’t infringe a valid patent. That is taught in patent litigation defense 101. If you listen to the Google’s of the world, every patent is invalid and Google never infringed anybody’s patent. Nobody is going to give up an argument and concede that a patent is valid or that they do infringe. Moreover, one can will always find some defense attorney that will enable such a belief.

    the 2013 patent verdicts in the Eastern District of Texas and found that Eastern District juries rendered verdicts in favor of accused infringers [defendants] in 10 out of 14 cases
    Cherry picking data again I see.

  12. Matt Levy August 5, 2016 12:53 pm

    Mr. Heller, there is no infringer lobby. You’re assuming bad faith, which may make your arguments easier, but simply doesn’t match reality. Most companies would prefer not to infringe and try to avoid infringing patents. It’s really not cheaper to have to fight in court on a regular basis.

    I’m surprised to hear you endorse some form of patent litigation reform. Didn’t you oppose the Innovation Act?

  13. Paul F. Morgan August 5, 2016 1:34 pm

    Per Matt’s comment: most patent attorneys other than those working solely on patent application filing and prosecution happily accept paying parties that sue for patent infringement as well as those threatened with patent suits. Most clients are interested in lowering attorney fees and other unnecessary patent litigation costs for both cases, since they are normally paying for it. Which is why the vast majority of companies sued for patent infringement make settlement payments to the patent owner to end the litigation [most sooner rather than later].
    From now on, thanks to the recent Sup. Ct. decisions thereon, any patent suit defendants persisting in continuing with invalid defenses are vastly more at risk of paying attorney fee sanctions and treble damages to the patent owner. Former cases of flaky complaints with baseless infringement allegations are also being constricted by several recent legal changes. Like them or not.
    P.S. Matt, is there anything stated in my previous comment above that you do not agree with? Because I think some of those additional points about this professors-letter need to be made. I have no position on any pending venue statute, but I think there should be more pro bono concern about some of the allegations being made for a rational decision to be made by Congress.

  14. Bemused August 5, 2016 2:57 pm

    Matt,

    First, the local patent rules in the EDTX are modeled on the local patent rules in the NDCA. Why is it that the local patent rules in the EDTX are alleged to be worse for a defendant/accused infringer than the same local patent rules used in the NDCA? If you disagree with my assertion that both districts have similar local patent rules, I’d appreciate it if you could point out with specificity the difference in the local patent rules between the two districts and why the EDTX rules are more beneficial for patent holders.

    Second, have you seen the statistics for the past several years for plaintiff win rates versus defendant win rates in the EDTX? Those statistics almost precisely mirror the national average. I don’t see the EDTX as somehow giving plaintiffs a better shot of winning than defendants.

    Third, if there is one difference between the EDTX and Delaware or the NDCA is that the judges in the EDTX grant summary judgment motions at a lower rate If you’re a smaller company or individual inventor with limited finances trying to protect your patents, EDTX is the more favorable venue (since it lessens the odds that you’ll have to go up on appeal to get the adverse SJ ruling vacated/reversed which will significantly increase your legal costs and lengthen the time to trial).

    But purely from an equitable perspective, what’s wrong with wanting to be in a jurisdiction where the judges are reticent to grant SJ motion because they prefer to see litigants get their day in court?

    Fourth, complaining about the cost to transport document and witnesses to the EDTX is nonsensical. Most documents nowadays are available in electronic form so that’s an irrelevant/non-existent cost. As regards cost of transporting witnesses, I’m not buying that either. Each side’s witness gets deposed close to where they are located (live or work) and the number of witnesses that actually have to get transported to testify at trial is at most a small handful so those costs are almost always insignificant.

    In my opinion, if you want equalize the distribution of where patent cases are filed, the judges in other districts should give litigants their day in court (i.e. be judicious in granting SJ motions). That change alone will almost surely guarantee patent case filings in districts other than the EDTX.

  15. Matt Levy August 5, 2016 4:14 pm

    Paul, I basically agree with what you wrote.

    Bemused, it’s not the local patent rules, it’s the local court rules and judge’s standard discovery rules that are the biggest problems. The judges require the parties to start producing documents before requests have been served, and in practice they place few limits on discovery. (The new FRCP rule 26 may change that, but there’s been no change to the standard discovery orders yet.) With few opportunities to end the case quickly, defendants are faced with rapidly mounting discovery costs.

    I understand why a patent owner would want a favorable court, but that doesn’t make it right. Venue is supposed to be convenient for the parties; that’s the rule. EDTX is generally not convenient for the defendants, and EDTX’s main “interest” in the cases is really the boost to the local economy.

    Win rates aren’t relevant to venue, as Paul said. The main reason for filing in EDTX is that it increases a plaintiff’s settlement leverage, not that the plaintiff really expects to win more at trial. It is not equitable for the plaintiff to be able to choose a court in order to increase the expenses incurred by the defendant. That may be good litigation strategy, but it’s not justice and it’s an abuse of the court system.

  16. Edward Heller August 5, 2016 5:24 pm

    Matt, let is be a bit more clear on what I mean by “infringer lobby.” I think you have heard of efficient breach, the theory that contract law should favor breach where the damages are less then the benefits of breach. This happens when the cost of performance exceeds damages, or when other opportunities present themselves so that the profits from pursuing the alternative exceed the damages for breach. You should also know that the people who favor this theory recognize that the requirements for specific performance interfere with the theory of efficient breach, and they are seeking some reform in this area.

    Since eBay and Seagate, there are many who believe that with no serious risk of an injunction and no serious risk of enhanced damages for infringement because of Seagate (which has now been overturned), there is no downside risk for any accused infringer to wait to be sued before settling. This tactic has become known as “efficient infringement.”

    The consequence is that businesses that would prefer to license patents on a fair basis rather than sue are now forced to sue to get any non nuisance-level-settlement damages. Of course, this also means that licensing businesses are going to be out litigation costs. There simply is no incentive (until the Seagate overturn) to actually settle except if the patent owner simply is willing to take a pittance.

    But the same people who believe in efficient infringement form the lobby that seeks to limit patent remedies and to raise the cost of enforcement so that they may better continue to infringe without serious risk of enforcement. The passage of IPRs and the maintenance of IPRs is also critical to this effort.

    But that does not mean that I do not recognize that there can be problems with particular courts that should not be fixed to the extent possible. But I just disagree that the patent venue statute is the place to look for this remedy when everybody agrees that the problem is not so much in the venue, but in the the rules and practices of the particular court. Patent owners need to be able to file in neutral fora, have their cases stick and not be transferred to the home court of a defendant where many patent owners perceive bias, if not by the judges, at least by the jurors. That is why I think we ought to consider having a national patent court simply to eliminate home-court prejudice. This patent court could have its home base in Washington, and satellite courts in, for example, Chicago, Dallas, and San Francisco. I think the patent owner should be allowed to choose any of these , but the national court should have the right to move cases from one court to another simply the balance work load.

  17. Edward Heller August 5, 2016 6:13 pm

    Paul, “Per Matt’s comment: most patent attorneys other than those working solely on patent application filing and prosecution happily accept paying parties that sue for patent infringement as well as those threatened with patent suits.”

    Paul, entirely true. And until sued or threatened with suit, no such patent attorney will agree pay anything other that a cost-of-litigation avoidance settlement because, until Halo overturned Seagate, there was absolutely no downside to continue to infringe. Also, in most cases, the cost to move to an non infringing design is higher than potential infringement damages, which makes the decision to continue to infringe the only choice — that is, prior to Halo’s overturning of Seagate.

    But all this shows a profound disrespect for patents. Halo is a first step back from an age that might be know as the age of the efficient infringer. Perhaps, with a finding of willful infringement, now that Seagate is gone, courts will be more willing to issue injunctions as they did in the case of i4i when Microsoft was found to be an willful infringer. No one should have the right to infringe a patent with impunity.

  18. Paul F. Morgan August 6, 2016 12:44 pm

    Ned, your representation that “until Halo overturned Seagate, there was absolutely no downside to continue to infringe” is simply not true. Patent owners that are producing or selling real products, not just in the patent litigation business, can and do still get injunctions. Furthermore, up to treble infringement damages are now more easily available. Even before then, as soon as a genuine infringer has been noticed or sued all its subsequent infringements are thus at risk of being made or sold at a net loss. [Unless, of course, the infringed item is only a small portion of their product.]

  19. Fat Bastard August 6, 2016 9:57 pm

    Also, I have to disagree that the rules in the ED Tex somehow favor plaintiffs. The local patent rules are very similar to those in the ND Cal and DNJ and D Del and valid summary judgment motions are as encouraged as any other venue (as opposed to a dilatory and expensive tactic employed by deep-pocketed defendants). And, merits of the ED Tex aside, restrictive venue that thoroughly clogs the dockets of ND Cal, D Del, and DNJ, among others, while other interested venues go begging doesn’t really help anybody, except infringers.

  20. Curious August 8, 2016 11:25 am

    Bemused @14. Nice comment. Your comment on judges in ED of TX wanting to have plaintiffs get their day in court is consistent with my understanding.

    is simply not true
    Maybe not 100% true, but it is mostly true. The term “efficient infringement” came about for a reason — the reason being is that it is highly unlikely that any infringer will be successfully sued in court. Moreover, if the amount of the infringement is fairly small, it is even less likely that a patent owner will attempt to recover damages (e.g., when the cost of the suit > the damages recovered). There are always exceptions, but these exceptions are not driving infringer behavior.

  21. staff August 8, 2016 1:07 pm

    ‘their points really don’t justify delaying venue reform’

    So say large multinational invention thieves and their paid puppets.

    From near the bottom of the “article”…

    ‘Matt Levy is Patent Counsel at the Computer and Communications Industry Association’

    Inventors will tell you this trade group is just a front for large serial infringers. Don’t believe the lies of thieves. Just because they call it reform doesn’t mean it is. We have to ask, did they pay to publish this Chinese style propaganda?

    For an honest assessment please see our position statement.

    We also encourage you to read the letter by law professors in support of property rights at… http://patentlyo.com/media/2016/08/SSRN-id2816062.pdf

    For our position and the changes we advocate to truly reform the patent system, or to join our effort, please visit us at https://aminventorsforjustice.wordpress.com/category/our-position/
    or, contact us at aifj@mail.com