Posts Tagged: "venue reform"

While Congress seems to pass some form of patent legislation roughly every 9 to 11 years, the more important changes with regard to business predictability and economic growth tend to come from specific Court decisions. Just look at what Alice has done to ruin software patents with uncertainty, and now with the PTAB actually finding that an MRI machine is an unpatentable abstract idea. Worse it has placed the US behind Europe and even China in terms of protecting computer implemented inventions… Courts can make patents great again in America. And if not they will at least be as active as they have been in the past 10 years in terms of shaping the patent dialogue.

While Congress does seem to pass some form of patent legislation roughly every 9 to 11 years, the more important changes with regard to business predictability and economic growth tend to come from specific Court decisions. Just look at what Alice has done to ruin software patents with uncertainty, and now with the PTAB actually finding that an MRI machine is an unpatentable abstract idea. Worse it has placed the US behind Europe and even China in terms of protecting computer implemented inventions.

Every time a new patent reform bill moves forward in Congress, the courts create case law eliminating the need to pass the bill. They legislate from the bench to protect their turf. The infringer lobby took advantage of this dynamic and pushed bills that would stimulate response from the courts… I think we should employ this well proven method of changing law. I know this is not how our government is supposed to work, but let’s be pragmatic. We cannot force an unwilling government to follow its own constitutional processes. So, we need to work with what is available.

Earlier today the United States Supreme Court granted certiorari in TC Heartland LLC v. Kraft Food Brands Group LLC. In deciding to hear this patent venue case the Supreme Court has agreed to decide whether 28 U.S.C. § 1400(b) is the sole and exclusive provision governing venue in patent infringement actions… Ultimately, the question that the petitioner really wants the Supreme Court to address is whether the Eastern District of Texas, which is home to 20-25% of all patent litigations because it is perceived to be patent owner friendly, is a proper venue for patent owners to be choosing. If the Supreme Court issues a ruling that strikes down current patent venue rules there would be no need for patent venue reform efforts to continue in Congress. On the other hand, if the Supreme Court were to affirm the Federal Circuit in this case calls for legislative venue reform would likely become deafening.

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.

Clinton’s proposal for accomplishing this goal would be twofold: (1) to reduce excessive patent litigation through additional patent reform; and (2) strengthening the operational capacity of the USPTO by allowing the USPTO to keep and spend all the fees it collects. “You are looking at a 14-page detailed document. There is a lot of thought put behind this agenda,” explained Todd Dickinson, former Director of the United States Patent and Trademark Office under President Bill Clinton who was reached by telephone for comment. Not surprisingly, Dickinson has has been an advisor to the campaign regarding intellectual property matters. “Other campaigns will be hard pressed to match the depth and thoughtfulness of these proposals.”

Larger companies like Adobe can defend themselves in court, even in Texas, but upstarts and mom-and-pop small businesses do not have the time or resources to defend themselves in a Texas courtroom for prolonged periods of time. Given the rampant and growing abuse, Congress must pass comprehensive patent legislation that includes critical venue reform measures. Without venue reform, patent trolls will continue to bring lawsuits against America’s leading innovators and small businesses in jurisdictions that have no connection to an alleged infringement. The choice of forum should not be outcome determinative. That’s not justice.

Despite being grossly unfair to small inventors, the courts are routinely transferring cases to a venue containing the headquarters of the infringing multinational corporation, as happened in this case. Often cases are moved thousands of miles requiring outside counsel, travel, additional motions and legal work and other costs. Often the new venue is not experienced in patent cases and may take years longer to conclude the litigation. Part of the strategy for defendants is to fight a costly war of attrition against independent inventors and small businesses. Eventually they will be forced to give up. That is why patent reform that impacts venue matters so much, it is about raising costs, tipping the scales of justice and beating innovators into submission using procedural rules.

While widespread patent reform seems unlikely during the remainder of the 114th Congress, targeted patent reform is another matter entirely. Indeed, the Senate Committee on Small Business & Entrepreneurship recently held a hearing largely attacking the America Invents Act (AIA) and the current reform bills and in a bi-partisan manner. And this week we may see a bi-partisan push in the Senate for a bill that focuses only on venue reform, which will be co-sponsored by Senator Jeff Flake (R-AZ) and Senator Cory Gardner (R-CO). The bill, available in draft form, is titled the Venue Equity and Non-Uniformity Elimination Act of 2016.