The patent troll is dead. It died a simple death, a sudden death, and a death by truth. Today the majority of members in the House and in the Senate know that patent trolls were nothing but a multi-million dollar disinformation smokescreen paid for by the largest multinational companies on the planet. But lies can only survive behind a smokescreen, so once the fake numbers and other phony reports generated by the many academics with an agenda were exposed, the patent troll myth fizzled and melted away just like the Wicked Witch when Dorothy threw a little water on her.
Patent trolls were never a real problem, which is why those crying the loudest opposed the TROL Act aimed specifically at the few bad actors they held up as boogey men. Patent trolls were never a real problem, which is why even the Obama Administration’s Federal Trade Commission opined in October 2016 that the use of the term is unhelpful and misleading.
The only folks still using the fake numbers, the phony reports, and scare tactics are efficient infringers digging their fingernails in for one last swipe at legalizing their theft of other people’s property. The most recent swipe was venue reform masked by a similar disinformation smokescreen, this time about the Eastern District of Texas. In the end, the infringer lobby got what they wanted, but not through Congress. Once again the Supreme Court stepped up to the plate to deliver what those seeking to legalize the theft of patent rights couldn’t even obtain from Congress.
Due to the death of the patent troll narrative, venue reform would never have made it through Congress, but the infringer lobby doesn’t need Congress when they have a Supreme Court. They just need to make it sound like Congress may pass it and the Supreme Court will just do it for them, as if the Court can’t help themselves but to meddle in patent politics as they continue to disrupt generations of well settled patent law with practically every decision. However, this mode of lawmaking comes with very serious consequences. A group of nine liberal art majors who have never started up a company with the sole asset of a patent need a lot of information in order to understand the effects of their decisions. It is clearly evident from eBay, Alice and virtually all of the Supreme Court’s major patent decisions in the last decade that they do not understand the consequences of their decisions.
That is why Congress is supposed to write our laws. Anyone can just walk into Congress and explain the effect of proposed legislation. After four years walking the halls of Congress, I know there are good lawmakers and there are bad lawmakers, but the good ones outnumber the bad. If you just walk in and make a clear easy to understand case, collectively they will listen and bad law will be averted. Lawmakers have to pay attention because if they don’t, they will be ousted in the next election. It’s personal for lawmakers.
But that is not how the courts work. Only the parties in a case are allowed to explain the consequences. You can’t just walk into the Supreme Court to explain what will happen if they make a bad decision. Sure you can file an amicus brief explaining it, but that costs tens of thousands of dollars and the Court does not have to read it. But they get to change law in whatever way they see fit even without understanding the effects of their decision. There is just no fear of making a bad decision. They are lifetime appointed so they can’t lose their next election since there will never be one.
So what are the consequences to venue reform as pitched in Congress and now made law by the Supreme Court in TC Heartland? Well, it is probably not terrible if you only have one infringer. If the infringer is your next-door neighbor, probably nothing changes. But if the infringer is not your next door neighbor, you will have to file the suit wherever they are incorporated. That will drive your costs up because you will have to hire local counsel, and pay to get your attorneys, expert witnesses and yourself to the courthouse probably many times. But the cost increase may not be fatal depending on your circumstances and depending on the value of your case.
But for those inventions that change the world, the ones we as a nation want to encourage, TC Heartland is a disaster and far too often will be fatal. In many high value inventions, there are hundreds of infringers. The America Invents Act (AIA) makes you file each case individually, so you cannot file similarly situated cases as a single case like you could before the AIA. And there is no law that allows you to file suit where you reside, so now you have to file each case independently where the infringer resides. This means that you will could very well end up with hundreds of cases filed in dozens of different courthouses scattered around the country.
Of course, there is the serious issue of radically increasing your costs. You will have to hire local counsel for each courthouse. You will also have to transport your technical experts, lawyers and you to multiple locations for multiple hearings, depositions and other court procedures. Depending on how many different courts you are engaged with, this will likely cause scheduling problems that will probably significantly delay many of your cases.
And why does it make sense to require the property owner to go to the home turf of the wrongdoer to seek a remedy for their wrongdoing?
But there are even worse problems than just cost and delay. Each court will make independent decisions on claim construction, validity and many other issues. Since the Supreme Court has eliminated the longstanding decision frameworks of almost every element of patent law, instead demanding a case-by-case approach to everything without any bright lines, the likelihood that multiple courts will come to different decisions on the same question is extremely high. And when they do come to conflicting decisions, your cases will be thrown into chaos as multiple infringers argue in multiple courts that all of the courts adopt the most damaging decision against your patent. This alone could kill all of your cases just because of the incredible cost of cross litigating all decisions after any one court makes a decision.
None of that really matters anyway unless you happen to have a few million dollars that you are willing to lose. But if you are like most of us and you don’t have that kind of spare change laying around, there are no longer any contingent fee attorneys or investors still in the patent business anyway. This is because of the law created by the Supreme Court and Congress. eBay made it impossibly difficult to get injunctive relief, Alice is invalidating around 64% of challenged patents, and the PTAB invalidates or neuters over 95% of the patents it reviews. So the damage of TC Heartland is really just mute. It’s a big nothing in the larger scheme of patent law created by the Supreme Court and Congress that is thoroughly hostile to inventors and startups. But eventually there will come a final straw.
Is it really any wonder so much venture capital and so many startups are moving to China?