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
= = = =
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.
= = = = =
[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).
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
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.
He truly is the Donald Trump of the Left
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.
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…
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!
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.
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 …
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.
>>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?
Not really Bob. Don’t feel like playing the games of the anti-patent people.
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.
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.
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.
Still no explanation for how the described system was unenabled before 5G? What a surprise.
You are not paying attention Bob.
No surprise there either, eh?
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.
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.
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.
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.
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.
Still running from your own assertions. Can’t blame anyone but yourself for that filth.
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.
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.
🙂
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?
>>>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.
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.
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.
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.
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.
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.
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.
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.
>>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?
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.
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.
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.
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.
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.”
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.
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.
“If that is a “bad practice,” then it should not be allowed ANYWHERE.”
Tell it to the cowboys in ED tex.
The point here 6 is that the academics should be doing that – if in fact the court there is doing something untowards.
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.
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?
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.
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.
Paul, maybe the Patent Pilot Program needs updating. Make the ND Cal Rules mandatory in other districts.
THIS is more in line with what I have been posting
Somehow, Malcolm cannot seem to grasp it.
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.
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.
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.
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.
MM, you do know that these same folks are in favor of a national patent court?
Ned, they said they would include a ROM, so it should be fine.
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?
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.
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.
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.
Other than being smarmy, Malcolm, what exactly is your point?
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.
I am not the one that apparently is not paying attention, Malcolm.
Try actually reading what has been posted.
I am not the one that apparently is not paying attention, Malcolm.
Yes, you are.
Nice try, though.
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.
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.
Good ol ED tex, the very face of modern gubmit corruption.
link to google.com
You mean, other than the PTO…?
(Drop by Gene’s blog for a pair of doozies)
😉
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.
“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?
Ya rly.