On Thursday, July 13th, a hearing of the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet, chaired by Rep. Darrell Issa (R-CA), was held in part to determine the effects of “bad patents” on American businesses. In his opening remarks, Issa took the time to greatly admonish Judge Rodney Gilstrap of the U.S. District Court for the Eastern District of Texas (E.D. Tex.). Issa decried Judge Gilstrap’s “overreach” in denying a motion to transfer venue in a case coming after the U.S. Supreme Court’s decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, a decision which restricted the venue statute for patent infringement cases. “It is, in fact, an act that I find reprehensible by that judge,” Issa said.
The case Issa is referencing is Raytheon v. Cray, a case involving patents covering supercomputers used for scientific research. On June 29th, Judge Gilstrap entered a memorandum order and opinion in that case which denied a motion filed by Cray to transfer venue for lack of personal jurisdiction and improper venue, pursuant to 28 U.S.C. § 1406(a). In addressing the second part of the patent venue statute in 28 U.S.C. § 1400(b), the part of the statute concerning the regular and established business of a defendant which was not clarified by SCOTUS’ TC Heartland decision, Judge Gilstrap confirmed a multi-factor test for determining if a non-resident maintains a regular and established place of business for purposes of filing a patent infringement suit within the statute. The factors are: (1) physical presence, (2) defendant’s representations, (3) benefits received, and (4) targeted interactions.
On Wednesday, July 19th, the American Board of Trial Advocates (ABOTA) issued a press release defending Judge Gilstrap’s decision to deny the motion to transfer venue in the face of Issa’s recent comments to the House IP subcommittee. ABOTA officially “opposes the direct personal attacks” made by Issa which were directed at Judge Gilstrap. ABOTA noted that Issa’s further assertion that Judge Gilstrap was motivated by personal bias to promote community interests “extended beyond a challenge of the legal precedent to a personal attack on Judge Gilstrap and his integrity as a jurist.”
ABOTA National President F. Dulin Kelly was quoted as strongly defending the actions of Judge Gilstrap against the assertions made by Issa. “One of our primary purposes is the preservation of the independence of the judiciary,” Kelly said. “The judicial canons preclude judges from responding to public criticism of their rulings and when a member of the judiciary has been publicly criticized, our ABOTA protocol requires us to evaluate the criticism and determine whether a response on behalf of the judge or court is appropriate.”
“When our elected representatives choose to issue personal attacks and name calling on any individual judge, demeaning the personal integrity of the jurist, the effect is to undermine the very principles of our liberty and government. Politics have no place in our courts… To utilize a personal attack against an individual jurist for the purpose of a political agenda diminishes the authority of our system of justice.”
Darrell Issa laughs when he’s presented with different viewpoints, which point out the realities of our country’s failing patent system. He hurls personal attacks in the service of defending the interest of patent infringers. By his own definition he himself is a patent troll. It’s no wonder that our country’s patent system is careening downhill, given the leadership at the helm.
Meanwhile, President of China, President Xi, has declared that infringers must pay a heavy burden in China.