Supreme Court Messes with Texas

The Supreme Court today decided a monumental case in patent law regarding venue, i.e., where a patent plaintiff can file a lawsuit.  TC Heartland LLC v. Kraft Foods Group Brands LLC (May 22, 2017).  For a few decades, the operative venue standard governing where patentees could sue a defendant was 28 U.S.C. 1391(c): ” a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.”  This broader “personal jurisdiction” standard was promulgated by the Federal Circuit’s interpretation of various Congressional amendments to this statute, which seemed to broaden venue over and above the more specific patent venue statute, 28 U.S.C. 1400(b).

In the case today, the Court discussed the law of venue from the Judiciary Act of 1789 through various Congressional changes to the venue statutes today.  The Court also cited Transmirra Prods. Corp. v. Fourco Glass Co., 233 F. 2d 885 (1956), where the Court expressly stated that the then 1391 statute did not supersede, augment or supplement the standalone 1400 statute, which exclusively governed patent cases.  Thus, the seminal Federal Circuit decision VE Holdings Corp. v. Johnson Gas Appliance Co., 917 F. 2d 1574 (Fed. Cir. 1990), which did just that, is now reversed, reflecting an ongoing trend of CAFC reversals.

The TC Heartland decision will greatly affect plaintiff patentee’s choices as to where to sue a defendant.  Indeed, under 1400(b), a company’s “residence” is their State of Incorporation,  which rather restricts the places to sue.  Plaintiff patentees will thus be less likely to file their infringement actions in the Eastern District of Texas, which over the last two decades or so has morphed into a haven for patentees, i.e., the juries in East Texas generally favor the patent system and patentees, driving the defendant corporations mad.

Time will tell how this new decision, on the backs of so many other Supreme Court narrowings of patent law, will impact the patent system.  Many corporations, desirous of insulating themselves from patent lawsuits, will continue their onslaught, via lobbyists and other means, to further derail the U.S. patent system.

Having practiced in the Great State of Texas (its legal name) many years ago, I can relate a humorous anecdote about the Eastern District courts.  In the 1970s and 1980s, the Texas federal courts, particularly in the Eastern District had specialized in personal injury (PI) cases.  With tort reform, however, these cases and the specialization of these courts became irrelevant.  So, the story goes that the courts there, as a means to perfect another area of specialization, focused on intellectual property, i.e., IP as opposed to PI;)  Perhaps the Eastern District will need to refocus again – with different letter acronyms.

Patent Damages Event Recap

As reported, the Greater Washington, DC Chapter of the Licensing Executives Society (LES) had a great Patent Damages Symposium on February 23, 2017.  Here is a link to some pictures from the event:  http://lesusacanada.site-ym.com/blogpost/1326845/269411/Patent-Damages-Symposium

Many thanks to the speakers and host firm, Sidley.

I and the DC Chapter of LES are planning for World IP Day, April 26, 2017, and for the LES Spring meeting here in Washington, DC.  We are planning a shindig for the evening of May 8th in connection with the Spring meeting.  Stay tuned.

Ray Van Dyke

vandyke@acm.org

Patent Damages Symposium in Washington, DC

On February 23, 2017 in Washington, DC, the Licensing Executives Society (www.les.org) is having a Patent Damages Symposium with prominent damages professionals and IP attorneys, including Krista Holt, CEO of GreatBridge Consulting, Inc, Ryan Morris, a partner at Sidley & Austin, Jennifer Vanderhart, PhD Economist and a Principal at Analytics Research Group, Robert L. Vigil, PhD,  Principal  at Analysis Group, Inc., and Raymond Van Dyke, Principal at Van Dyke Law.   We will talk about recent cases affecting patent damages, techniques for patent prosecutors to maximize damages and current trends in damages.

The link is http://www.lesusacanada.org/events/EventDetails.aspx?id=921187&group=160111

This meeting constitutes my additional efforts as the Greater Washington, DC Chapter Chair to promote the organization and otherwise help the IP profession and practitioners with practical programs.  For those in DC, Virginia and Maryland, please feel free to contact me if you have a speaker in mind or a topic that needs addressing. With the eclectic wants of the Greater DC membership, we have seen it all, and welcome more!  For those outside of the DC Metro area, thanks for reading about us!

If you have any suggestions or want to speak when you visit the area in future, please email me.  Conversely, I am open to invitations to speak elsewhere. Ray Van Dyke, 202.379.3903, vandyke@acm.org,  Greater Washington, DC Chapter Chair for LES, and Patent/IP practitioner.  http://www.rayvandyke.com

Krista Holt to speak at LES DC

For those who read my blog the other day on the Alice decision, Alice Doesn’t Patent Here Anymore,  https://rayvandyke.com/posts/, I thank you.  At the September 17, 2015 Licensing Executives Society (www.les.org) meeting in Reston, Virginia, the Licensing Executives Society (www.les.org) prominent IP attorney and my friend Dale Lazar talked about the impact of Alice and what practitioners can do in the face of this tragedy.  It was quite informative – and to be revisited in a DC meeting this Fall.

The Virginia and recent Baltimore meetings constitute my further efforts as the Greater Washington, DC Chapter Chair to promote the organization and otherwise help the IP profession and practitioners with practical programs.  For those in DC, Virginia and Maryland, please feel free to contact me if you have a speaker in mind or a topic that needs addressing. With the eclectic wants of the Greater DC membership, we have seen it all, and welcome more!

For DC, the next meeting is September 30, when Krista Holt will talk about the ever-changing damages models. http://www.lesusacanada.org/chapters/usa/washington-dc-chapter/september-30-2015-washington-dc-chapter-meeting

In Virginia on October 1, Dale’s colleagues, James Heintz and Gianni Minutoli at DLA Piper, will talk about the ongoing controversies involving Inter Partes Review within the USPTO, and how practitioners can better represent their clients – hopefully avoiding the “Death Squads.” http://www.lesusacanada.org/chapters/usa/washington-dc-chapter/october-1-2015-washington-dc-chapter-meeting

Finally, in DC on October 21, former Deputy head at WIPO and prominent attorney James Pooley will talk of issues in trade secret law.  http://www.lesusacanada.org/chapters/usa/washington-dc-chapter/october-21-2015-washington-dc-chapter-meeting

For those outside of the DC Metro area, thanks for reading about us!  If you have any suggestions or want to speak when you visit the area in future, please email me.  Conversely, I am open to invitations to speak elsewhere.

Ray Van Dyke, 202.379.3903, vandyke@acm.org

Greater Washington, DC Chapter Chair for LES