Patent Venue: Half Christmas Pie, And Half Crow

Professor Paul M. Janicke returns to the Patently-O Patent Law Journal with a look back at his predictions about venue prior to the Supreme Court’s decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S.Ct. 1514 (2017)(limiting patent venue).  The new article is aptly titled Paul M. Janicke, Patent Venue: Half Christmas Pie, And Half Crow, 2017 Patently-O Patent Law Journal 13.

Read the ArticleJanicke.2017.ChristmasPie

Prior Patently-O Patent L.J. Articles:

  • Paul M. Janicke, The Imminent Outpouring from the Eastern District of Texas, 2017 Patently-O Patent Law Journal 1 (2017) (Janicke.2017.Venue)
  • Mark A. Lemley, Erik Oliver, Kent Richardson, James Yoon, & Michael Costa, Patent Purchases and Litigation Outcomes, 2016 Patently-O Patent Law Journal 15 (Lemley.2016.PatentMarket)
  • Bernard Chao and Amy Mapes, An Early Look at Mayo’s Impact on Personalized Medicine, 2016 Patently-O Patent Law Journal 10 (Chao.2016.PersonalizedMedicine)
  • James E. Daily, An Empirical Analysis of Some Proponents and Opponents of Patent Reform, 2016 Patently-O Patent Law Journal 1. (Daily.2016.Professors)
  • Tristan Gray–Le Coz and Charles Duan, Apply It to the USPTO: Review of the Implementation of Alice v. CLS Bank in Patent Examination, 2014 Patently-O Patent Law Journal 1. (GrayLeCozDuan)
  • Robert L. Stoll, Maintaining Post-Grant Review Estoppel in the America Invents Act: A Call for Legislative Restraint, 2012 Patently-O Patent Law Journal 1 (Stoll.2012.estoppel.pdf)
  • Paul Morgan, The Ambiguity in Section 102(a)(1) of the Leahy-Smith America Invents Act, 2011 Patently-O Patent Law Journal 29.  (Morgan.2011.AIAAmbiguities)
  • Joshua D. Sarnoff, Derivation and Prior Art Problems with the New Patent Act, 2011 Patently-O Patent Law Journal 12 (sarnoff.2011.derivation.pdf)
  • Bernard Chao, Not So Confidential: A Call for Restraint in Sealing Court Records, 2011 Patently-O Patent Patent Law Journal 6 (chao.sealedrecords.pdf)
  • Benjamin Levi and Rodney R. Sweetland, The Federal Trade Commission’s (FTC) Recommendations to the International Trade Commission (ITC):  Unsound, Unmeasured, and Unauthoritative, 2011 Patently-O Patent Law Journal 1 (levi.ftcunsound.pdf)
  • Kevin Emerson Collins, An Initial Comment on King Pharmaceuticals: The Printed Matter Doctrine as a Structural Doctrine and Its Implications for Prometheus Laboratories, 2010 Patently-O Patent Law Journal 111 (Collins.KingPharma.pdf)
  • Robert A. Matthews, Jr., When Multiple Plaintiffs/Relators Sue for the Same Act of Patent False Marking, 2010 Patently-O Patent Law Journal 95 (matthews.falsemarking.pdf)
  • Kristen Osenga, The Patent Office’s Fast Track Will Not Take Us in the Right Direction, 2010 Patently-O Patent L.J. 89 (Osenga.pdf)
  • Peter S. Menell,  The International Trade Commission’s Section 337 Authority, 2010 Patently-O Patent L.J. 79
  • Donald S. Chisum, Written Description of the Invention: Ariad (2010) and the Overlooked Invention Priority Principle, 2010 Patently‐O Patent L.J. 72
  • Kevin Collins, An Initial Comment on Ariad: Written Description and the Baseline of Patent Protection for After-Arising Technology, 2010 Patently-O Patent L.J. 24
  • Etan Chatlynne, Investigating Patent Law’s Presumption of Validity—An Empirical Analysis, 2010 Patently-O Patent L.J. 37
  • Michael Kasdan and Joseph Casino, Federal Courts Closely Scrutinizing and Slashing Patent Damage Awards, 2010 Patently-O Patent L.J. 24 (Kasdan.Casino.Damages)
  • Dennis Crouch, Broadening Federal Circuit Jurisprudence: Moving Beyond Federal Circuit Patent Cases, 2010 Patently-O Patent L.J. 19 (2010)
  • Edward Reines and Nathan Greenblatt, Interlocutory Appeals of Claim Construction in the Patent Reform Act of 2009, Part II, 2010 Patently‐O Patent L.J. 7  (2010) (Reines.2010)
  • Gregory P. Landis & Loria B. Yeadon, Selecting the Next Nominee for the Federal Circuit: Patently Obvious to Consider Diversity, 2010 Patently-O Patent L.J. 1 (2010) (Nominee Diversity)
  • Paul Cole, Patentability of Computer Software As Such, 2008 Patently-O Patent L.J. 1. (Cole.pdf)
  • John F. Duffy, The Death of Google’s Patents, 2008 Patently O-Pat. L.J. ___ (googlepatents101.pdf)
  • Mark R. Patterson, Reestablishing the Doctrine of Patent Exhaustion, 2007 Patently-O Patent L.J. 38
  • Arti K. Rai, The GSK Case: An Administrative Perspective, 2007 Patently-O Patent L.J. 36
  • Joshua D. Sarnoff, BIO v. DC and the New Need to Eliminate Federal Patent Law Preemption of State and Local Price and Product Regulation, 2007 Patently-O Patent L.J. 30 (Download Sarnoff.BIO.pdf)
  • John F. Duffy, Are Administrative Patent Judges Unconstitutional?, 2007 Patently-O Patent L.J. 21. (Duffy.BPAI.pdf)
  • Joseph Casino and Michael Kasdan, In re Seagate Technology: Willfulness and Waiver, a Summary and a Proposal, 2007 Patently-O Patent L.J. 1 (Casino-Seagate)

16 thoughts on “Patent Venue: Half Christmas Pie, And Half Crow

  1. 3

    Has anyone identified a valid eligible claim to a method for driving a robot car?

    I didn’t think so.

    And yet people keep filing on them. It’s called “grifting.”

    Get a l i f e, people.

      1. 3.2.1

        You already informed us that autonomous vehicles will never work.

        Just a tad more nuanced than that.

        What “matters to me” is that I’m going to be asked to pay for it. You know: so the rich get richer. The Duke of 0.1% will get his robot car and his very special dedicated lane (because we all know what happens otherwise). Everybody else will be invited to subsidize his shiny awesomeness. While they s u c k it, of course.

        Perhaps you’ve never driven in a city before. If not, please don’t start now. You won’t like it. Nobody does! That’s why nobody lives in them. ;)

        1. 3.2.1.1

          Just a tad more nuanced than that.

          What “matters to me” is that I’m going to be asked to pay for it

          LOL – you try to insert “nuance” where there was none.

          As Bguy points out, you are on record as such simply will not work, thus there can be NO case of you being asked to pay for it.

          If you are being asked to pay for it, then de facto you were wrong and it has been made to work.

          There is NO nuance involved here.

  2. 2

    It is indeed a puzzle why the EDTX is still a preferred venue. Can the explanation be as simple as “old habits die hard”? Or maybe a lot of the plaintiff’s who file there haven’t gotten the memo yet.

    1. 2.1

      It is indeed a puzzle why the EDTX is still a preferred venue

      Your cognitive dissonance is showing again.

      1. 2.1.1

        Just passing along a point raised by Prof. Janicke.

        We know the mailroom is busy during the holidays, “anon.” Maybe you should just focus on identifying those registered letters that need to be shredded before the attorneys get a chance to see them.

    2. 2.2

      I’m pretty sure that the museum right across the road from the courthouse says it all.

      They are in the very heart of the white cis hetero christian capitalist patriarchy. Those attitudes, and cultural practices, which you despise, will inevitably show up in the jurors and in their verdicts, and the judges, and the local rules etc. etc.

    3. 2.3

      I suggest as a more likely reason the fact that more than 95% of patent suits settle before trial, usually to avoid uncontrolled pre-trial discovery and other large defendant expenses. Hence, a D.C. that rarely conducts early Markmans or decides summary judgement motions before trial and typically does not restrict discovery scope will be popular for plaintiffs seeking settlement payments without trial expenses. [Which includes most PAEs.] In contrast, a “rocket Docket” D.C. will be desirable for those wanting a fast trial, which these days seems less common, except for those patent owners seeking [and likely to get in spite of Ebay] an injunction against a competitor?

      1. 2.3.1

        What about the requirement for proper venue, Paul? Is that requirement just being ignored by the “settlement seekers”?

        1. 2.3.1.1

          As Prof. Janicke noted, they may be trying to tie E.D.TX venue to local businesses. [If that is a stretch the D.C. judges will know that the Fed. Cir. may take a mandamus.]

    4. 2.4

      T.C. Heartland only affects venue for domestic corporations. So not surprisingly, a significant part of the uptick in new E.D. Tex. case filings involves foreign defendants, where venue was not affected by T.C. Heartland.

      And for the defendants that maintain retail establishments in Tyler or Plano (like Apple Inc.), T.C. Heartland didn’t help them either.

  3. 1

    A pleasantly clear, candid, unbiased factual article by a long time leading expert on Fed. Cir. decisions.

    P.S. The Fed. Cir. has also indicated that a TC Heartland based venue transfer motion not filed until after the suit has already been extensively dealt with by that D.C. might not be granted.

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