Law Professors Call for Patent Venue Reform

A group of 45 professors sent the following letter to Congress arguing for statutory reforms to limit venue in patent infringement cases.  One focus of this move is to direct intention toward a focused and limited action rather than another round of comprehensive patent reforms.  This type of limited reform could come as part of a late-session omnibus package.

– Dennis

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The undersigned patent law academics and economics experts write to express our support for patent venue reform.  Changes to the venue rules are necessary and urgent to address the significant problem of forum shopping in patent litigation cases.

As Colleen Chien and Michael Risch recently wrote for the Washington Post, “[t]he staggering concentration of patent cases in just a few federal district courts is bad for the patent system.”[1]  It is imperative that Congress address patent venue reform to return basic fairness, rationality, and balance to patent law.  Specifically, venue reform that treats plaintiffs and defendants equally by requiring a substantive connection to the venue on the part of at least one party is critical to ensure fairness and uniformity in patent law.

As a result of current venue rules, though there are 94 federal judicial districts, a single district is home to nearly half of all patent cases.  Of the 5,819 patent cases filed in 2015, nearly half— 2,541 cases—were filed in the Eastern District of Texas,[2] and 95% of those cases were filed by non-practicing entities (NPEs).[3]  And the Eastern District of Texas’s percentage of patent cases has been steadily increasing over the last several years, rising from 11% in 2008 to 44% in 2015.4  By comparison, the Northern District of California, home of Silicon Valley, saw only 228 patent cases filed in 2015.[4]

A single judge in the Eastern District of Texas had 1,686 patent cases filed assigned to his docket in 2015—in other words, a single judge handled two-thirds of the patent cases in that district, and nearly one-third of all patent cases nationwide.  If all of those cases were to go to trial, that single judge would have to complete 4 to 5 trials every day of the year (including weekends)—not counting any time for motions or other hearings.  The burden of this overwhelming number of cases leads, unsurprisingly, to a high reversal rate on appeal.  The United States Court of Appeals for the Federal Circuit affirmed only 39% of the decisions from the Eastern District in 2015.[5]

One reason for the disproportionate number of patent filings in the Eastern District of Texas is that the district employs procedural rules and practices that attract plaintiffs, including by delaying or denying the ability of defendants to obtain summary judgment to terminate meritless cases early.[6]  For example, the district requires parties seeking summary judgment in patent cases to first seek permission before filing any summary judgment motion, the effect of which is to delay and deter early resolution of cases.[7]

While parties can seek transfer out of the district, some NPEs have opened offices in the district simply for the purpose of bolstering their arguments to stay in their preferred venue.  The average grant of transfer in this venue took over a year (490 days), and the average denial of a transfer motion took 340 days, meaning that even cases that are ultimately transferred remain pending in the district for nearly a year.[8]  Local discovery rules permit discovery to go forward even while a motion for transfer is pending, so even successfully moving to transfer only partially relieves the expense of litigating in a distant venue and the burden on the court.

The disproportionate number of patent plaintiffs—and NPEs in particular—bringing cases in a single venue ultimately results in wasted judicial resources, as more of those cases are overturned on appeal.  For accused infringers, the costs of innovation are increased when they have little or no connection to the venue and are forced to litigate from a distance.  The harm caused by abuse of the system and the resulting loss of trust in the uniformity and justness of the U.S. patent law system is unmeasurable.

This type of dynamic is bad for patent law, and bad for United States innovation.  It is thus critical that Congress act now to pass targeted patent venue reform.

[Read the PDF Letter]

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[1] Colleen Chien and Michael Risch, A Patent Reform We Can All Agree On, Wash. Post, (June 3, 2016, 3:07pm).

[2] Data from Lex Machina (analysis as of June 7, 2016).

[3] Joe Mullin, Trolls made 2015 one of the biggest years ever for patent lawsuits, arstechnica (Jan. 5, 2015). DocketNavigator Analytics, New Patent Cases Report,  (report run June 2, 2016).

[4] Lex Machina, Patent Litigation Year in Review 2015, at 5 (Mar. 2016).

[5] Ryan Davis, EDTX Judges’ Love of Patent Trials Fuels High Reversal Rate, Law360.com (Mar. 8, 2016).

[6] Daniel Klerman and Greg Reilly, Forum Selling, 89 S. Cal. L. Rev. 241, 252-53 (Jan. 2016) (“Eastern District judges are particularly hostile to summary judgment in patent cases. Patent litigators, but not other litigants, are required to seek permission before filing summary judgment motions . . . and are prohibited from moving for summary judgment if permission is denied.”)

[7] See, e.g., Judge Rodney Gilstrap, Sample Docket Control Order—Patent.

[8] Lex Machina, Patent Litigation Year in Review 2015, 10 (Mar. 2016).

158 thoughts on “Law Professors Call for Patent Venue Reform

  1. Priceless Friday funnies:

    link to reuters.com

    “There is seemingly no limit on how what we refer to as 5G could impact our everyday existence,” FCC Commissioner Mignon Clyburn said. “A refrigerator that not only alerts you to a near-empty egg carton, but automatically adds that item to a virtual shopping list, enabling a delivery to your door by week’s end, without any action from you.”

    Wowee zowee! But wait — does that include organic brown eggs? And why do I need delivery? I’ll just 3-D print my eggs.

    LOLOLOLOLOLOLOLOLOL

    1. Just bizarre that you think your mocking statements carry any weight. You sound so bigoted and ignorant MM that you should not be out in public.

    2. So can tell us the merit of what you wrote is MM? Automating something people do is a laughing stock? Just bizarre that Dennis has allowed his blog to be taken over by you.

      1. A pizza for some guys in the coffee shop could take care of that over the weekend (and not impinge on Malcolm’s First Amendment rights at all)

        I have previously pointed out how.

        Either this is the “ecosystem” the good professor wants, or there is some other unstated reason why this blight is not taken care of…

        1. A pizza for some guys in the coffee shop could take care of that over the weekend

          You could have it delivered by a GPS-equipped car, wherein the pepperoni was cut into shapes by a robot using a processor with a memory and a look-up table, wherein said table comprises data associated with the pizza recipient’s personal information, wherein said information comprises a name and a photograph of said recipient.

          Let’s call it Alphabet Pizza. 5G makes it possible!

          1. I don’t care what or even whether “that makes it possible.”

            I care more that some actual step to stopping the blight and “making this a better ecosystem” would actually happen.

            As it is, and as I have mentioned, Prof. Crouch appears more eager to merely mouth a platitude than take care of something that has been documented for a full decade now.

      2. Automating something people do is a laughing stock?

        What’s a “laughing stock” is the idea that somehow 5G has “enabled” this awesome “auto egg delivery” “techn0logy”.

        But I get how that would slip right by someone like you.

        Oh lookie! That phone has no wires! I claim a method of sending baseball scores by phone, wherein the phone is wireless. So shiny. So “techn0”! So innovative …

        1. MM you just ignore enablement. Over and over again. And, actually, yes 5G could enable this type of innovation.

          What you write is total nonsense with no correspondence to patent law or science. You skip over the fact that whether the claim is enabled, which is key to all innovation. And information processing has all the characteristics of any of the other areas.

          Anyway….I’ve said this to you many times before. We just see your backside and then it starts over again in the next post.

          Pretty clear you are paid to write on this blog. Maybe it is indirect in that you are paid for policies by Google, but you are definitely a Google stooge.

          1. >>yes 5G could enable this type of innovation.

            Care to suggest how this invention was not enabled before 5G (I.e., the world where one of ordinary skill in the art has 4G LTE), but is enabled with 5G?

              1. If by ‘game’ you mean following through with your assertions (for example, that the above described machine was unenabled before 5G), I can certainly understand why you wouldn’t feel like ‘playing’.

                I’m certain the generic idea has been enabled for over a decade.

                Admittedly, that would be a crap implementation, but that illustrates the error in the software patent f3tishists. The generic idea is worth nothing without the information necessary to implement it well.

                1. Illustrates the error?

                  I don’t think so.

                  At best it just shows a proper 102/103 rejection for this particular item.

                  Nothing at all here indicative of the larger anti-software position that you want to advance, Bob.

                2. Bob, 1) the MM game is to ask lots of questions and deny any knowledge and then repeat in the next blog post.

                  2) What you are saying is classic anti-patent nonsense. What you are describing is typical development of all innovations. The car, the airplane, automatic driving information processing, etc.

                  And it is classic that you expect me to explain how the patent system handles this with scope of enablement, invalidating claims that cover new inventions inside the claims (LizardTech), etc.

                  What you describe as a problem is something real patent are taught and discuss in law school. I don’t feel like giving you a lecture on the topic and then you just forgetting it the next blog post.

                  This is the game that MM runs on here. I know you admire him. That is to the detriment of your character. I hope you have a government job.

                3. Bob everything about you is anti-innovation and anti-the enlightenment.

                  I suggest you stop following MM. He is jeering unethical intellectually dishonest disgrace to modern society. You are becoming like him.

                4. And Bob just to be clear for any else reading this:

                  The whole premise of your question is ridiculous. Innovation by its very nature is not something you can predict a prior. And it is not the burden of the inventor to prove that their invention is worthwhile, but the burden of the PTO to prove is it not.

                  And, Dennis you really should be ashamed of yourself for allowing this blog to be dominated by MM and his minions.

                5. And did you read what I said Bob? I told you there are lots of current problems. I have no interest in listing them and having you judge whether your filthy noodler determines they are patent worthy or not.

                  Man, you are just such filth. No wonder the other blogs have banned you.

                6. Next Bob and MM will deny hindsight and then ask for someone to explain it to them and then forget the whole thing in the next blog post.

                  Really Dennis this blog has devolved to trash.

                7. Plus, Bob, you implied assumption that somehow patents are a giant problem is simply wrong.

                  Fact: the US software industry is the envy of the world. It is 10 times the size and worth 100 to 1,000 times more than any other software industry. It grew-up with patents with some of the companies being founded on patents.

                  But, the anti-patent judicial activists now say that patents are bad now despite the OMB saying there is no problem.

                  The fact is Bob that what you read on this blog is a circle j3rk. The fact is that the reforms are destroying innovation in the country to the benefit of the large international corporations. And, anyone outside a small group of anti-patent filth agree with this and the academic studies by real economists say this is happening.

                  Just filth.

                8. Bob, you are a joke. You want to play MM’s game of gisting and jeering. We have all asked MM why he hasn’t written some patent applications if they are so easy for what the software will be in 10 years. Guess what? Because he can’t. And your game of gisting as in, gee there is a model T not much different than a modern car is ridiculous. It completely ignores real innovation and real development.

                  And, Bob, I am not going to spend the time to tell you the problems of 4G. They are similar to the Model T vs. a modern car. I know them well because I have written patent applications directed to exactly these issues.

                9. No need to enumerate the ‘problems of 4G’. Just explain why the described invention was beyond the scope of enablement prior to 5G.

                  It should take one paragraph to shut me up and show that you weren’t just talking out your rear. Let’s see it.

                  :)

                10. Bob,

                  It takes less than a paragraph to show that you are just playing a game:

                  Enablement is not within the claim (typically), and certainly not within a sound byte.

                  Yet you seem to want to see exactly that.

                  Why?

                11. >>>Enablement is not within the claim (typically), and certainly not within a sound byte. Yet you seem to want to see exactly that.

                  That is not what I want. I do not want NW to show that the invention was enabled by 5G. NW said the described refrigerator was enabled by 5G. What I want is an explanation for why one of ordinary skill in the art could not make or use the described refrigerator before 5G.

                12. Bob: That is not what I want. I do not want NW to show that the invention was enabled by 5G.

                  1) You are filthy tro11 who has not responded to any of my substance.

                  2) Innovation isn’t there yet because 5G isn’t there yet. You get that?

                  3) I am not in the business of giving what tro11s want who do not respond to any of my substance.

                13. You know Dennis you have really destroyed what could be a great blog by permitting people like MM and Bob to dominate the blog.

                  Just look at what they do. They deny basic principles of patent law. Question people and play dum(b). And then just re-start the same nonsense again in the next blog post. And blast everyone with their never ending nonsense.

                14. Bob—did you get that? That we don’t know what the invention is yet because 5G isn’t there yet with the invention. That is what the investment and patents are for.

                  You know, just denying the basic principles of innovation and patent law like you are some kind of alpha male is just ridiculous. You are filth.

                15. And Bob did you responds to the Model T and modern car analogy ?

                  Did you explain to us why you haven’t filed a patent with what the social networks will look like in 5 years so you can make millions and stop working?

                  No. Playing MM’s game of ignoring what other people write and just pushing forward with fallacious statements.

                  Filth. Bob you are complete and total filth.

                16. And just to clear: how do we know that Bob and MM are full of it? We know because if these inventions are so easy then they would do them and be worth millions instead of slaving away they are.

                  Filth. Bob you know you are filth.

                17. NW,

                  Congratulations on vigorously responding to all the tangents you’ve created. But those tangents are not relevant to whether the described invention was unenabled prior to 5G.

                  Your only direct response was essentially ‘the invention involves 5G, so 5G must enable it!’ which is an absurd cop out. The described refrigerator was not described with any particular 5G features.

                  You have not offered any plausible explanation why “A refrigerator that not only alerts you to a near-empty egg carton, but automatically adds that item to a virtual shopping list, enabling a delivery to your door by week’s end, without any action from you” was unenabled prior to the development of the 5G specification.

                  Instead you’ve just obfuscated and disassembled over peripheral issues. If you continue to dance away from the issue and move the goal posts, you’ll only prove that you’re totally ignor@nt of what enablement actually means.

                18. Bob,

                  You have not responded to a single substantive comment I’ve made.

                  I did respond to you. I told you that I am not going to go into the specifics of the problems that exist now to have you jeer them as trivial. I also said this was analogous to the Model T vs. a modern car. Do you understand that?

                  So, I see you have molded yourself after MM. I am not here to answer your ridiculous questions. It is fairly obvious you are playing dumm. I have no intention on wasting any more time with someone like you. Flush.

                19. >>You have not responded to a single substantive comment I’ve made.

                  Your “substantive comments” are all directed to peripheral issues. They are desperate distractions.

                  >>I did respond to you. I told you that I am not going to go into the specifics of the problems that exist now to have you jeer them as trivial.

                  Can you name a single problem that would have prevented or would still prevent one of ordinary skill in the art from making and using the described refrigerator?

                20. Bob,

                  It is your own “want” that is the desparate distraction.

                  You appear to want to make some type of 102/103 argument vis a vis enablement.

            1. Bob, this roundabout game is ridiculous. Dennis has completely destroyed this blog by allowing this type of nonsense.

              Let me see, I will explain it to you and then you will ask lots of questions and have MM mock me with nonsense. Then the two of you will show us your backsides. And then the whole thing starts again.

              Dennis really should ban MM completely.

              1. Don’t need to ban him – just throw the drive-by blight into a same container off of the main thoroughfare of this blog so that actual dialogues are promoted.

                (It is no accident that under the DISQUS system – with less than full privacy settings – this type of collection of comments by the same poster was available and that Malcolm switched to maximum privacy mode only after I pointed out how to view the repetitious nature of Malcolm’s blight.

                He has never been able to provide a cogent reason for his choosing maximum privacy (as the minimum settings provided ample privacy protection)

                And yet, for some unstated reason, that DISQUS experiment for making a “better ecosystem” was abandoned.

  2. OT but the SkyHawke decision today (precedential) addresses an issue that (surprisingly) has not come up earlier. SkyHawke prevailed in an IPR but did not agree with the PTO’s claim construction (“it’s too narrow!” <— so much for BRI!). So they appealed to the CAFC to fix the PTO's claim construction but leave the conclusion (patent validity) intact. They are currently in litigation in district court with the party who brought the IPR.

    Holding: CAFC lacks jurisdiction to hear prevailing party's complaints about claim construction. If the district court chooses to adopt the PTO's claim construction (it's not obliged to) and SkyHawke is negatively impacted by the district court's construction, that's the time to appeal.

  3. Here’s a good example of why, as noted in the subject letter, relatively few of the patent suits involving the many high tech Northern District of California companies get brought in that district instead of thousands of miles away in cow country. Neither defendants or plaintiffs are allowed in N.D. CA to get away with playing a game of a “shifting sands approach to claim construction” until trial. [While running up big discovery costs]. They have to clarify issues early.
    E.g., the recent “Order Denying Defendant’s Motion for Leave to [belatedly] Supplement Invalidity Contentions, MLC Intellectual Property, LLC v. Micron Tech., Inc., Case No. 14-cv-03657.”

    1. Neither defendants or plaintiffs are allowed in N.D. CA to get away with playing a game of a “shifting sands approach to claim construction” until trial. [While running up big discovery costs]. They have to clarify issues early.

      Are those rules unfair?

      Let’s hear from the super serious f0lks who love ED Texas.

    2. Paul,

      For the second time on this very thread we are in accord.

      But that sounds expressly like something that should be addressed differently than what the academics have put forth.

      If that is a “bad practice,” then it should not be allowed ANYWHERE.

      Is that a practice that somehow survives scrutiny of the latitude allowed to individual courts? Should the focus then instead be on the system that controls what is and what is not allowed (regardless of which court)…?

      And note that the mealy offerings of Malcolm are simply off kilter.

      Try reading any of my posts – and respond in an inte11ectually honest manner before diving into the weeds, Malcolm.

          1. The point here 6 is that the academics should be [pointing out bad practices]

            Are you suggesting that “the academics” never explained why ED Texas was popular with patent tr0lls?

            Please say that you are suggesting that.

            1. I am “suggesting” exactly what I have posted.

              Why are you having such difficulty with what I have said? I have used those clear and direct sentences that you are always on about. I have squelched your dust kicking and stopped you from moving goalposts, with the point presented remaining clear.

              Maybe less games from you and more inte11ectual honesty in discussing the topic at point, eh Malcolm?

          2. They already did that in quite a number of papers I do believe anon. They are addressing the issue on a national scale so that a. it gets handled nationally and b. the issue doesn’t keep popping up all over the place.

            1. I do believe that you are mistaken, 6.

              Further, the notion of “addressing on a national scale” is actually NOT present here. That’s rather the point, after all. What they are proposing is just not solving what they set out as “the problem,” and all they are doing is setting a procedural layer on top of “the problem,” without taking care of any root cause.

              For example, does any case otherwise proper for the “rogue” district have any change whatsoever to deal with what is supposed to be so “improper?”

              No 6, a national dealing with the problem would look quite different. It would take care of “the problem” everywhere by dealing with the root cause and nationalizing that solution.

              Read my other posts on this thread please.

    3. Paul, maybe the Patent Pilot Program needs updating. Make the ND Cal Rules mandatory in other districts.

  4. Having 1/3 of patent cases litigated by the same judge would seem to introduce a lot more uniformity to the manner in which cases are decided than making it harder to venue shop. Perhaps the bigger problem in ensuring that patent cases are decided in a more uniform manner is the nonuniformity of the rules in the different venues and the nonuniform manner in which the cases are decided in the different venues, which making it harder to venue shop would not correct.

    1. As an aside, I would have thought that out of 45 academics, someone would have caught that logical flaw with their argument and at least worded the letter somewhat differently.

      1. Let’s fact it. The quality of character of the 45 is very low. I wouldn’t trust them as far as I could throw all 45 at once.

    2. Having 1/3 of patent cases litigated by the same judge would seem to introduce a lot more uniformity to the manner in which cases are decided

      And having all cases litigated by the same judge would introduce even more uniformity!

      Why aren’t these professors calling for that? It’s a huge mystery to David Lewis.

        1. do know that these same folks are in favor of a national patent court?

          Is that in this letter, or some other letter that they all signed?

          1. MM, the Harmonizers are always talking about it — do it like in England or Europe. Makes a bit of sense since infringement is now national.

            1. Ned,

              You point out a tricky situation.

              To get to the point that Big Corp likes (a trans-national view), one must first establish a truly “national level infringement.” BUT such a truly “national infringement” state necessarily means that a suit could legitimately (hence my attempt at fleshing out a root cause that nobody seems to really want to address) be filed in any district of the nation.

              As I have also pointed out, if there IS something amiss (anything amiss) with what is going on in any one district, is not the answer more in line with correcting the error there (and then nationalizing the corrected solution)? But that is just not what these academics are attempting.

              In a very real sense, your post here dovetails with all of my posts on the subject of this article.

              1. anon, you got it.

                There is no real objection to litigating most patent cases in one court — provided that court is conveniently located (San Francisco, Dallas, Chicago?) and has fair rules.

                The greatest complaint about the ED of Texas is about their rules.

                The greatest complaint about the IPR (in addition to the lower standard of proof) is about the PTAB rules.

        1. Hardly anyone believes that a mere “lack of uniformity” is the problem here.

          The problem is a jurisdiction that pretty much advertises itself as a friendly home to the b0tt0mest b0ttom-feeders in the patent system.

          Maybe you haven’t been paying attention?

          LOL — of course you’ve been paying attention. We’ve been listening to you defend those b0tt0m feeders and their behavior for years now.

              1. There is no try – not even need for try. While you are doing your usual drive-by meaningless ad hominem bit, I have been putting legitimate points on the table for discussion.

                Wake up Prof. Crouch.

    3. Yes David you would think so, but a study a couple of years ago surprisingly showed a higher, rather than lower, Fed. Cir. reversal rate for decisions of the judges handling so many patent suits.

      The subject letter does seem to admit that local rules can also make a difference.

      1. I’m guessing you’re talking about the business methods shinanigans. That isn’t “corruption”. I see ol Gene and ol JD aren’t getting along since they’re two cranky old mans only one of which knows the office from the inside out.

        1. That isn’t corruption

          O really?

          Just like SAWS was completely on the up and up and there was no reason to drop that when a little disinfecting sunlight was shone on it, eh?

            1. ‘Cept not 6.

              Try reading the threads (and don’t get caught up on the amusing p1ss1ng match between Gene and John.

              Maybe JDWright will send you an explanation 😉

              1. I did. I see no actual evidence of corruption. I see that there is perhaps a small tiny suggestion that there may be some present, but no actual evidence of such. And I saw that you already pointed out why it is barely even a suggestion. Alice et al. make the lion’s share of those rejections most likely 100% legit.

                1. Wow – clench tight those eyes and demand “actual evidence” in that situation and never mind to provide ANY actual evidence (or even indications of such) for the topic of this thread….

                  So you honk that the “evidence” there – the anecdotes accompanied by the hard core actual numbers is not evidence…

                  Come back when you want to at least appear to be inte11ectually honest, 6 – when you refuse to see something, there is no point in discussing that something.

                2. “when you refuse to see something, there is no point in discussing that something.”

                  I already said that there was something. There is evidence that there may, MAY (a big ol MAY), be something wrong there. Whether or not it warrants further investigation is up to the higher ups (who, according to JD and common sense are the ones causing the problem in the first place so wahmp waaaa). You can report it to the inspector general if you’d like.

                3. What you “already said” and what you are claiming now simply do not match – even as you attempt to minimize what you are saying now.

                  Also, there has been yet more evidence posted with yet another thread (and take note of the angle that Alice-style 101 rejections are NOT covered by the “have better prior art” angle for reopening prosecution with [yet] another prior art search)

                4. “Also, there has been yet more evidence posted with yet another thread (and take note of the angle that Alice-style 101 rejections are NOT covered by the “have better prior art” angle for reopening prosecution with [yet] another prior art search)”

                  I have yet to see “more evidence” than was stronger than what he had before. And yes, you do not require a new reference. If the 101 Alice rejection was not previously adjudicated then it is fair game. As people try to tell you folks like a million times, the language of the MPEP is not binding and is not always comprehensive in scope as to all matters that might arise. 1214.04 only addresses explicitly what to do when there is specific knowledge of a new reference. It does not address what to do with a grounds of rejection under 101 or 112. Only the rules are binding. And the rules state:

                  “When a decision by the Patent Trial and Appeal Board on appeal has become final for judicial review, prosecution of the proceeding before the primary examiner will not be reopened or reconsidered by the primary examiner except under the provisions of § 1.114 or § 41.50 of this title without the written authority of the Director, and then only for the consideration of matters not already adjudicated, sufficient cause being shown.”

                  link to uspto.gov

                  Trying to escape the long arm of the Alice lawl based on a procedural hiccup is beneath the ordinary lawlyer who knows they are an officer of the court.

                  Gene just asserts that Alice is not a new development, but it actually is. July 2014 the decision drops. Several months later the PTO comes out with guidance. Surely not all board appeals have been resolved within 1.5-2 yrs in this field. It took 3 years for my last board decision, and I was affirmed on all grounds practically summarily.

                5. Also, I see that Gene finally picked up on the IG route which I’d mentioned, I suppose at someone’s suggestion. He’s likely right that he may well could get an investigation, however, I should go ahead and tell you guys before you get your hopes up that the IG, unless enraged for some reason, is typically very easy to mollify. I’ve had to deal with them one time, and they were very accommodating to my organization. Here, the PTO will get deference for their field of expertise, and the higher level people will hand responsibility down to the examiners issuing the rejections. At most you might can get the TC director to take responsibility for the .01% of apps that he reopened prosecution on because of Alice. And that’ll be practically no responsibility at all.

                  Even so, I wish you good luck. Gene is right you’ll probably need some whistleblowers. But, like you and I already discussed a year ago or so, whistleblower protections are so horrendous in the law right now so as to barely even exist. Gene should appraise any whistleblowers he finds that might act on his behalf to do their blowing to the IG directly and in accordance with established tremendously burdensome procedures, otherwise they will forfeit their already weak protection (thanks federal circuit!).

                6. Gene also has a somewhat skewed viewpoint on the procedure and whom is “subordinate” to whom in the PTO, and as a result also has a skewed viewpoint on what the effects of the procedure and the “subordinate” chain are on any app (or app going through board review). He thinks that the ultimate decision to allow is up to the TC director. But, in reality, the TC director is only a “backstop” against abuse from the SPE/primary signing the decision to allow. The TC director’s role in this procedure of reopening does not make him a “villain” at all, even if he reopens them all. All of those decisions to reopen were that of the signatory (and the SPE is always consulted before the director is I can assure you, because the SPE is the one that physically/verbally takes it to the Director in all such cases that I’m aware of) that merely got the Director to sign off on their decision.

                  Likewise his insistence that the board is “subordinate” to the examiner/director is backwards as well. They are not “subordinate” to any examiner or director in any respect. They simply have their role, which is solely the role of reviewing grounds of rejection made, and that role is largely separate from the chain of decision making/authority that leads to allowance. The man barely has a solid grasp on the internal procedure and the ramifications thereof.

                7. Finally gene laments the lose of right of appeal to the Federal Circuit, thinking that because of a reversal by the Federal Ciruit then even the “worst” TC director would then “allow” the application no matter what. He is mistaken on that. If you “win” at the board then you are always, 100% better off than if you had to go to the federal circuit. Likewise, you can always go to the district court at your discretion, and then go to the federal circuit via that route.

  5. Has the District Court Patent Pilot Program expired? E.D. of Texas was one of 14 districts selected under that law.

  6. As Teddy Roosevelt is credited for saying, “Complaining about a problem without proposing a solution is called whining”. No where in this letter did these academics propose any solution. You have to ask yourself, “Why Not”.

    1. Yes they did, their solution is patent venue reform: “Specifically, venue reform that treats plaintiffs and defendants equally by requiring a substantive connection to the venue on the part of at least one party is critical to ensure fairness and uniformity in patent law.”

      However, as I noted at 11.0, they didn’t define ” a substantive connection to the venue.”

      1. I do agree that that they stated they would require a “substantive connection” but they failed to define or otherwise present any additional details as a solution. How is a “substantive connection” and different than “a regular and established place of business”. They just merely throw a term around without presenting any true solution. Thus, they are whining. How would the Donald refer to these people… Whiny Babies?

        1. BC: How is a “substantive connection” and different than “a regular and established place of business”.

          Gee, I guess it would depend on whether “a regular and established business” includes an office with a name on it and nothing else.

          These are super hard and serious questions! And coming from the best and the brightest patent tr0lls. We have to pay attention to them!

          LOLOLOLOLOLOLOLOL

      2. Their “solution” does not solve what they set out as the issue to be resolved.

        Since that is the case, pedantically, BC is correct.

        😉

      3. Les, “substantive tie?” That is even worse for patent owners than the patent venue statute if it is limited to place of incorporation, principle place of business or residence of an individual.

        Venue should lie in any district where a defendant commits acts of infringement and where due process would permit the defendant to be sued. If the patent owner sues in one of these, his choice of forum should be respected.

  7. Here’s another troubling statistic. Did you know the Federal Circuit handles over 95% of all patent appeals?? It’s madness. #NumberedCircuitsMatter #Fexit #MakePatentsGreatAgain

  8. “Specifically, venue reform that treats plaintiffs and defendants equally by requiring a substantive connection to the venue on the part of at least one party is critical to ensure fairness and uniformity in patent law.”

    Dear Professors –

    What is the definition of “a substantive connection” if having an Office under the jurisdiction of the venue is not sufficient?

    1. The so called “offices” of several NPEs in that small town in E.D.TX has been nothing more than empty desks provided in one of the offices of one of the law firms in that town that have a major business from all that patent litigation, or, a mere post office box. Not even the actual offices of the NPEs, much less where any inventors, witnesses, or documents relevant to the patent or the allegedly infringed products are located. Hence, the need for a more genuine and substantive connection to E.D.TX than that kind of sham venue justification to get into that court.

      1. Absolutely correct Paul.

        We are in accord on this factor.

        That being said, the wrong questions are still being asked.

        If the reason why these actions are being taken (that locale is acting within “proper means”), is there really a problem?

        See post 7.

      2. Yeah, I know that. But that doesn’t answer the question. What is the definition of “more genuine and substantive connection?”

      3. Paul, you seem utterly offended that corporations are sued in any jurisdiction other than their home turf.

        The whole idea is to get away from their home turf.

        BTW, do you know why diversity jurisdiction exists?

        1. you seem utterly offended that corporations are sued in any jurisdiction other than their home turf.

          The whole idea is to get away from their home turf.

          What has been going in ED Texas is offensive to most reasonable people.

          1. Again – if the issue is one that the one district is “offensive” and out of line, should THAT not be the point being pursued by the academics?

            Your empty snideness about court latitude is quite meaningless Malcolm.

        2. Ned, E.D. TX is also not the home turf of any significant number of patent owners or inventors either, as the number of venue transfers out of there for reasons of forum inconvenience for both parties has demonstrated since the 5th Cir. and two Fed. Cir. mandamus actions starting prying them loose.

          I bet you are not opposed to patent owners being able to sue on their home turf? But if home turf is really such an advantage, why are not more patent suits filed in the districts of patent owners and/or inventors?

          1. Paul, the home turf of the patent owner is irrelevant for most patent owners. All they want to is stay out of the home turf of the defendant or a patent hostile district.

            There is a reason for diversity jurisdiction — to avoid a hostile forum. For the same reason, patent owners need to be able to choose a forum not hostile to them, where acts of infringement occurred, and where due process is not denied.

            The real problem is caused by the ability to transfer, which effectively strips patent owners of any ability to stay out of a hostile forum. If there is any reform needed, it is here.

            1. There is a reason for diversity jurisdiction — to avoid a hostile forum.

              Well, that’s a bit of an over-generalization and it doesn’t apply well at all to patent lawsuits.

              Maybe if you had some evidence that juries or judges tended to favor patent defendants who live in the same state over patent defendants from other states? Good luck with that.

              Perhaps if you’re one of those sub-tribal types who yearns for the days of slavery you have “special” feelings about your state and all the “foreigners” who come from distant states (like those “elite” states with the big cities and prestigious universities and other elitist stuff <—LOL). Most of us aren't so tied up in that kind of b.s.

  9. Some new venue might pop up years down the road, but simply passing a statute that says something like “no patent cases shall be filed in or transferred to the Eastern District of Texas without the consent of all parties” (possibly with more detail to account for things like amending complaints) would solve many of the current problems.

    1. Except we all know that the E.D. of Texas is a bit of rogue district in refusing to comply with the new legislation put out by the SCOTUS.

      So, how about instead of this legislation, we focus on real problem like 101 and KSR, etc. The root cause of these problems is that the SCOTUS has legislated many changes in patent law and done it in a way that gives wide discretion to district court judges so that now there is far more variability in the outcome.

      This was also sponsored by Google PR firms (like MM).

      1. Even Justice Antonin Scalia called the Eastern District of Texas a “renegade jurisdiction.” Changing venue in patent cases shouldn’t be too controversial. It’s also won’t take much time, unlike 101, KSR, etc.

        1. Once again, if in fact true that one district is “renegade” and acting improperly, the right answer is to remove the ability to so act.

          But if in fact the “renegade” is not so “renegade,” within the “latitude” that courts enjoy, and there is no action that can be taken against that District, then other questions should be being asked – and asked of why other Districts are not employing that type of latitude.

          1. if in fact the “renegade” is not so “renegade,” within the “latitude” that courts enjoy

            How much “latitude” do courts “enjoy”, “anon”?

            Tell everyone.

            1. Your empty snideness about court latitude is quite meaningless Malcolm.

              No matter how defined (and certainly not limited to how I personally would define it), the latitude either IS or IS NOT a problem.

              If it is a problem, the academics just do not address it.

              If it is not a problem, then the academics are being officious and are cloaking their intentions under a ruse.

              Either way – with any amount of critical thinking – this academic intrusion is p00rly orchestrated.

              I would have thought that you and your “adoration” of short and direct statements would have picked up on this.

              Oh wait, there is an anti-patent holder angle to this. That explains your inability to apply critical thinking.

      2. But, what you define as the “real” problem only applies to the small percentage of patent suits that actually get a D.C. decision, and do not get reversed by the Fed. Cir., since the vast majority of defendants settle to avoid uncontrolled discovery and other litigation costs. Furthermore, and most importantly, there is no legislative effort to overrule Sup. Ct. decisions like KSR and Alice, whereas legislation to change patent venue was already pending and under active consideration, and is thus realistically possible.

    2. And shouldn’t Michael Risch disclose that Lemley got him the job at Villanova?

      You know, the thing about the anti-patent movement that should give anyone that is a decent human pause is that they are inbreed exchanging favors and are driven by Google bucks to Congress. And, often, they act unethically in their publications.

        1. MM, mocking someone with no substance is not convincing.

          And, again, then I show some of the proof and we see MM’s backside and he never admits it and then repeats the whole thing again with the next blog.

          Such a clever MM.

          1. And I am sure you remember the last time I asserted this. But, gee, little ole MM’s memory has faded on that. Remember MM when you posted a video about one of lobbyist of the AIA and you had denied for years that they were trying to bifurcate the patent system. And, then what happened? She admitted that was one of their primary goals.

            You never admitted you were wrong and then denied what she said as soon as enough posts went by that people would have a hard time finding the video.

            1. Note that if by “bifurcate” you mean sending patent claim patentability questions re previously unconsidered prior art back to the PTO, rather than only having them tried in District Courts, that was also a publicly expressed goal for reexaminations way back when the first reexamination legislation was being introduced.

              1. That’s not what NW is referring to, Paul. He’s referring to proposals to bifurcate the system into two systems, one of which would cater specially to the needs of the s0ftware junk peddlers that he adores.

                As for the rest of his comment, it seems to be one of those communications that he and “anon” receive via their fillings. Now if you’ll excuse me I need to hurry to my private jet for my weekly meeting with Sundar and Soros! We’re having lunch with Hillary today. Should be fun.

                1. Mindless ad hominem completely devoid of any link to the comments that I have actually posted.

                  Way to go Prof – asleep at the switch again I see.

                  Yay Decade of Decadence !

              2. Paul, the effort to bifurcate was bio/chem with their own patent laws and electrical and mechanical with a second set of patent laws.

                This was a massive push by Google.

  10. Fairness and uniformity being the professed goal, why not just mandate those things that the group of academics deem “fair and uniform” to not be at the discretion of any single locale?

    This path appears to be more of a procedural band-aid, another layer to be gamed. This also does nothing to address ANY underlying “unfairness” or lack of “uniformity” that lies at the core of the effort. Failing that fundamental core, this then is hardly the solution to end forum shopping.

  11. Gosh, this would be so nice if it hadn’t been sponsored by Google. At least that is the tweet I received.

    Mark Lemley asserts in writing that software has no structure.

    Mark Lemley’s cites in his vanity press publications (also called law journal articles) are not ethical.

  12. Academics voicing “concerns” over venue abuse?? Lololol. Just shut up and keep writing law review articles that no one will read. Leave venue reform to the people who are actually in the trenches. No offense to Prof. Crouch – I believe he’s an anomaly (e.g. this blog is very useful for litigators) – but law professors are the bottom of the barrel on giving advice to practicioners. Ever heard of a law professor being demanded by firms to practice privately?? Lolol. Stick to what you know and shut up.

    1. Lemley practices law as a litigator before the Fed. Cir. One of his many conflicts of interests that he doesn’t mention.

      But, we all know that Stanford Law Professors are above any ethical code.

      1. Stanford Law Professors are above any ethical code

        LOLOLOLOLOLOLOLOLOLOLOLOL

        They’re kinda like “terrorists in Iraq”, right?

        LOLOLOLOLOLOLOLOLOLOLOL

        1. MM you know just mocking someone with no substance doesn’t carry much weight.

          Actually, I have posted on this blog a link to a youtube video that discussed the fact that professors at the top law schools are above the ethical code. The youtube video was by a very respected scholar at U. of Chicago.

        2. But I see you are up to your old games of no memory and mocking, mocking, mocking with no substance.

          And, then I can re-post the video and you will run away and never admit that you were wrong. And then you will just do the same thing in the next blog post.

          Gee…round and round we go with the MM d0pe.

    2. Leave venue reform to the people who are actually in the trenches.

      Lots of professors are also practitioners. Some of the best, in fact.

        1. professors are also practitioners. Some of the best, in fact.

          Malcolm’s “fingerprints” that he is an academic. (As if the Left-Leaning G-g-g-grifter’s meme wasn’t enough of a hint)

          1. Maybe anon he is an academic. Maybe. Either MM is a paid blogger (he could be an academic with a side job) or he is Dennis.

            1. He is not Dennis.

              For one, I do not think Prof. Crouch has the “bio” background.

              For two, Prof. Crouch teaches patent law and Malcolm’s lack of “understanding”*** of the basics indicate that Malcolm is likely an academic in a different area than patent law.

              *** I am being generous with “lack of understanding” because the alternative is pure deception, and advocacy to the level of that deception – even advocacy on a blog – would surely violate ethical standards and since Prof. Crouch knows exactly who Malcolm really is, Prof. Crouch himself would have an ethical duty to report him.

  13. Gosh, I would want reform just to rescue the poor Rodney Gilstrap from such a nightmare workload — 1686 new patent cases in 2015 alone.

    Compare this to the following report about India: Justice Delayed is Justice Denied: India’s 30 Million Case Judicial Backloghttp://thediplomat.com/2013/12/justice-delayed-is-justice-denied-indias-30-million-case-judicial-backlog/

    “According to Markandey Katju, a retired Supreme Court justice, judges should have no more than 300 cases pending at any one time, but backlogs for individual judges stretch into the tens of thousands. In 2009, the Chief Justice of the New Delhi High Court released a damning report in which he claimed it would take 466 years for the court to clear its backlog. Despite spending on average less than five minutes per case, in 2009 the court had 600 cases that had been lodged over 20 years ago.”

    What I am seeing here is that either patent cases go to Texas to die, or to live on indefinitely practically unsupervised.

    I favor venue reform that would allow a patentee to sue a corporation in any venue consistent with due process and stay there against any transfer motion. However, I would say that there has to be an exception to this rule such that one district is not overwhelmed.

          1. Yes, Malcolm – I observe and note your behavior quite accurately, hence I do know.

            (Again, you say something that applies, but just not in the way that you want it to apply)

            1. I observe and note your behavior quite accurately

              I’m sure it seems that way to you! When the street cleaner comes by to scoop you up, please say hello to the driver.

              LOLOLOLOLOLOL

  14. “Patent law academics and economics experts” giving Congress advice as to the practicalities of venue in patent litigation. But they use numbers and statistics (and cite Law360), so they must be right.

  15. I see faux “academic” Lemley failed to rally 36 of the 60 stooges he enlisted for his NPE “deform” letter back in 2013. This new letter required him to recruit a bunch of new fanboys/girls. His coattails and influence are waning.

  16. ‘Law Professors Call for Patent Venue Reform’

    And they all are being compensated by …large multinational invention thieves?

    If you lift the rock under these ‘public spirited’ professors and large corporate lobbyists, we expect you will find the same tiresome large multinationals clamoring for what they call ‘reform’ in one manner or another which in reality only makes it easier for them to rob and crush their small competitors. Just because they call it reform doesn’t mean it is.

    For example, inventors and small entities want to bring infringement suits wherever they get the shortest time to trial. If we have to wait 5-7 years to get there, we go out of business before we ever get relief. Large infringers well know this and push for laws which make us sue them in distant and slow venues where they know there’s a good chance we’ll never make it to trial. This violates inalienable American property rights and long established practices where any tort victim can sue in any venue where they their rights are violated. But then, what do these multinationals care about traditional American justice? All these thieves want to do is rewrite law to suit their thieving intentions.

    For our position and the changes we advocate to truly reform the patent system, or to join our effort, please visit us at link to aminventorsforjustice.wordpress.com
    or, contact us at aifj@mail.com

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