TC Heartland Law Professor Amicus Brief

In TC Heartland, the accused infringer has asked the Supreme Court to reset the law of venue and give effect to the statutory statement that infringement actions be brought either (1) “in the judicial district where the defendant resides” or (2)” where the defendant has committed acts of infringement and has a regular and established place of business.”  28 U.S.C. § 1400(b).   In its 1957 Fourco decision, the Supreme Court affirmatively answered this question.  However, Fourco has been undermined by subsequent Federal Circuit decisions.  Thus, the question presented again is the same as what was originally asked in Fourco: “Whether 28 U.S.C. § 1400(b) is the sole and exclusive provision governing venue in patent infringement actions and is not to be supplemented by 28 U.S.C. § 1391(c).”

From a policy perspective, the case is seen as a vehicle for defendants who do not like being sued in the Eastern District of Texas and into more venues perceived as more defendant friendly.

A group of 50+ law and economics professors led by Mark Lemley, Colleen Chien, Brian Love, and Arti Rai have filed an important brief in support of the TC Heartland petition that I have copied below.  Their position is (1) the Federal Circuit has erred on interpreting the law; and (2) the permissive venue result has fueled many of the problems of our patent system.

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INTEREST OF AMICI[1]

Amici are 53 professors and researchers of law and economics at universities throughout the United States. We have no personal interest in the outcome of this case, but a professional interest in seeing patent law develop in a way that encourages innovation and creativity as efficiently as possible.

SUMMARY OF ARGUMENT

28 U.S.C. § 1400(b) provides that a defendant in a patent case may be sued where the defendant is incorporated or has a regular and established place of business and has infringed the patent. This Court made clear in Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 223 (1957), that those were the only permissible venues for a patent case.  But the Federal Circuit has rejected Fourco and the plain meaning of § 1400(b), instead permitting a patent plaintiff to file suit against a defendant anywhere there is personal jurisdiction over that defendant.  The result has been rampant forum shopping, particularly by patent trolls. 44% of 2015 patent lawsuits were filed in a single district: the Eastern District of Texas, a forum with plaintiff-friendly rules and practices, and where few of the defendants are incorporated or have established places of business.  And an estimated 86% of 2015 patent cases were filed somewhere other than the jurisdictions specified in the statute. Colleen V. Chien & Michael Risch, Recalibrating Patent Venue, Santa Clara Univ. Legal Studies Research Paper No. 10-1 (Sept. 1, 2016), Table 3. This Court should grant certiorari to review the meaning of 28 U.S.C. § 1400(b) because the Federal Circuit’s dubious interpretation of the statute plays an outsized and detrimental role, both legally and economically, in the patent system.

ARGUMENT

1. The Federal Circuit’s Expansive and Incorrect Interpretation of 28 U.S.C. § 1400(b) Allows Patentholders to Sue Anywhere in the Nation

Section 48 of the Judiciary Act of 1897 limited jurisdiction in patent cases to districts that the defendant inhabited or had a place of business and committed infringing acts. Act of March 3, 1897, c. 395, 29 Stat. 695. In 1942, this Court confirmed that “Congress did not intend the Act of 1897 to dovetail with the general provisions relating to the venue of civil suits, but rather that it alone should control venue in patent infringement proceedings.” Stonite Prods. Co. v. Melvin Lloyd Co., 315 U.S. 561, 563 (1942).

In 1948, Congress enacted 28 U.S.C. § 1400(b), specifying that “patent venue is proper in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.” In 1957, this Court confirmed that patent venue should not be interpreted with reference to the general jurisdiction statute, holding that “28 U.S.C. 1400(b) . . . is the sole and exclusive provision controlling venue in patent infringement actions, and that it is not to be supplemented by the provisions of 28 U.S.C. 1391(c).” Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 223 (1957).

In 1990, the Federal Circuit declined to apply this Court’s longstanding precedent and decided that the general venue statute should define interpretation of the patent venue statute.  It made this decision on the basis of a ministerial change Congress made in 1988 to 28 U.S.C. § 1391. VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1583 (Fed. Cir. 1990). That statutory language changed the wording in 28 U.S.C. § 1391, from defining residence “for venue purposes” to defining residence “for purposes of venue under this chapter.” There was no indication that Congress intended this change to impact the patent venue statute.

The Federal Circuit’s conclusion that Congress’s ministerial change overruled this Court’s longstanding precedent is incorrect for at least two reasons.  First, it violates fundamental rules of statutory construction.  It is well-established that Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468 (2001) (citing MCI Telecomm. Corp. v. American Tel. & Tel. Co., 512 U.S. 218, 231 (1994); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159-60 (2000)).

Second, the Federal Circuit’s interpretation renders the second half of § 1400(b) largely superfluous.  That section provides:

Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.

The term “resides” in § 1400(b) must mean something different than having “a regular and established place of business.” Otherwise, there would have been no reason to include both provisions in the venue statute, or to link them through the disjunctive term “or.”  In Brunette, this Court, interpreting 28 U.S.C. § 1400(b) as well as 28 U.S.C. § 1391(d), confirmed that where a corporation “resides” is where it is incorporated. Brunette Mach. Works v. Kockum Indus., 406 U.S. 706, n.2 (1972).

Instead of parsing § 1400(b) carefully, the Federal Circuit has chosen to read the § 1391(c)(2) definition of corporate residence for general venue purposes into the specific patent venue provision.  In relevant part, § 1391(c)(2) provides that corporate defendants:

shall be deemed to reside . . . in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question . . . .

For patent infringement cases, the relevant aspect of personal jurisdiction is typically specific jurisdiction, which focuses on whether the defendant’s suit-related conduct establishes a “substantial connection” with the judicial forum in question.  Walden v. Fiore, 134 S.Ct. 1115, 1121 (2014).  But a corporation will have established a suit-related “substantial connection” with, and thus be subject to jurisdiction in, any district in which it “has committed acts of infringement and has a regular and established place of business.” So the Federal Circuit’s decision to read the § 1391(c) definition of “resid[ing]” into § 1400(b) renders the second half of the latter section superfluous as to corporations, a category which includes virtually all patent defendants.  A judicial reading that renders half of a statutory provision superfluous is strongly disfavored.  United States v. Jicarilla Apache Nation, 131 S.Ct. 2313, 2330 (2011) (“‘As our cases have noted in the past, we are hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law.’” (quoting Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 837 (1988))); Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 698 (1995) (noting “[a] reluctance to treat statutory terms as surplusage”).

The Federal Circuit’s expansive, and we believe incorrect, interpretation of 28 U.S.C. § 1400(b) effectively allows patent owners to file suit in any federal district where an allegedly infringing product is sold.  In re TC Heartland, LLC, No. 2016-105, at 10 (Fed. Cir. Apr. 29, 2016) (holding that jurisdiction is proper in a patent suit “where a nonresident defendant purposefully shipped accused products into the forum through an established distribution channel and the cause of action for patent infringement was alleged to arise out of those activities”).  The widespread availability of products over the internet means, in effect, that patentholders can bring their suits in any district in any state in the country.

2. Permissive Venue has Fueled and Enabled Forum Shopping and Selling, Patent Trolls, and Case Concentration

The Federal Circuit’s expansive interpretation of 28 U.S.C. §1400(b) has harmed the patent system in three distinct ways. It has led to forum selling and forum shopping, it has contributed to the growth of opportunistic patent litigation by patent trolls, and it has led to undue case concentration.

Patent lawyers today spend a great deal of time figuring out the best districts in which to file patent cases, and for good reason. The district in which you file your patent case has consequences for how much your case will cost, how long it will last, and whether you will prevail in court. Mark A. Lemley, Where to File Your Patent Case, 38 AIPLA Q.J. 401 (2010); Brian J. Love & James C. Yoon, Predictably Expensive: A Critical Look at Patent Litigation in the Eastern District of Texas, Stan. Tech. L. Rev. ___ (forthcoming, 2016).

The choice of venue enabled by the Federal Circuit’s liberal interpretation of the statute has created an incentive for courts to differentiate themselves in order to compete for litigants and “sell” their forum to prospective plaintiffs. See J. Jonas Anderson, Court Competition for Patent Cases, 163 U. Pa. L. Rev. 631 (2015); Daniel M. Klerman & Greg Reilly, Forum Selling, 89 S. Cal. L. Rev. 241 (2016).

Among district courts, the Eastern District of Texas is the clear forum of choice for patent plaintiffs. It has been the most popular venue for patent cases in eight of the last ten years. Chien & Risch, supra at 3.  Whether intentionally or not, judges in the Eastern District of Texas have adopted rules and practices relating to case assignment, joinder, discovery, transfer, and summary judgment that attract patent plaintiffs to their district. Klerman & Reilly, supra; Matthew Sag, IP Litigation in U.S. District Courts: 1994-2014, 101 Iowa L. Rev. 1065 (2016) (detailing evidence of “forum selling” and five advantages to plaintiffs of filing suit in the Eastern District of Texas).

A study of all patent cases filed from 2014 to June 2016 quantifies some of the advantages. Love & Yoon, supra.  Compared to their colleagues across the nation, judges in the Eastern District of Texas take 150 additional days on average to rule on motions to transfer, id. at 15, and are 10 percentage points less likely to stay the case in favor of an expert adjudication on the validity of the patent by Patent and Trademark Office (PTO) in inter partes review, id. at 26., despite the fact that patents asserted in the Eastern District of Texas are challenged in inter partes review more often than patents asserted in any other district. Saurabh Vishnubhakat, Arti Rai, & Jay Kesan, Strategic Decision Making in Dual PTAB and District Court Proceedings, 31 Berkeley Tech. Law J. 45, 109 (2016).  At the same time, judges in the Eastern District of Texas have adopted discovery rules that begin earlier, end sooner, and require broader disclosure than just about anywhere else in the country. Love and Yoon, supra at 19-22 (comparing discovery and other pretrial deadlines applicable in the Eastern District of Texas and District of Delaware).  In combination, relatively early and broad discovery requirements and relatively late rulings on motions to transfer ensure that defendants sued in the Eastern District of Texas will be forced to incur large discovery costs, regardless of the case’s connection to the venue.

However, not all types of plaintiffs choose to take advantage of the leverage that these rules and procedures make possible.  Patent assertion entities (PAEs), or patent “trolls” use patents primarily to gain licensing fees rather than to commercialize or transfer technology. Colleen V. Chien, From Arms Race to Marketplace: The Complex Patent Ecosystem and Its Implications for the Patent System, 62 Hastings L.J. 297 (2010) Trolls make particular use of the advantages provided by the Federal Circuit’s permissive approach to forum shopping. Since 2014, over 90 percent of patent suits brought in the Eastern District of Texas were filed by trolls established for the purpose of litigating patent suits.  Love & Yoon, supra at 9. By contrast, operating companies, individuals, and universities are more likely to sue in other districts.  Chien & Risch, supra at 3-4, 40.

The troll business model explains this difference in behavior. As the FTC’s recent report describes, “litigation PAEs” sign licenses that are “less than the lower bounds of early stage litigation costs,” a finding “consistent with nuisance litigation, in which defendant companies decide to settle based on the cost of litigation rather than the likelihood of their infringement.” Federal Trade Commission, Patent Assertion Entity Activity: An FTC Study, https://www.ftc.gov/reports/patent-assertion-entity-activity-ftc-study.   Rather than a decision on the merits and damages commensurate with the value of patented technology, litigation PAEs instead seek to leverage the high cost of litigation to coerce nuisance-value settlements keyed not to the merits of the lawsuit, but the cost of litigation.  Mark A. Lemley & A. Douglas Melamed, Missing the Forest for the Trolls, 113 Colum. L. Rev. 2117 (2013). Further, unlike operating companies that sell products, litigation PAEs generally lack customers and regular operations and therefore have the flexibility to incorporate and file suit based solely on litigation considerations, through shell companies or otherwise.

While forum shopping in general impairs the operation of law, disadvantages those who lack the resources to engage in forum shopping, and creates economic waste, Jeanne C. Fromer, Patentography, 85 N.Y.U. L. Rev. 1444, 1464-1465 (2010), the rise of the troll business model exacerbates these problems in patent litigation, creating a particularly urgent need for the Court to hear this case. This Court has previously warned against the problems of abusive patent litigation.  More than a century ago, it worried about the rise of “a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the arts.”  Atlantic Works v. Brady, 107 U.S. 192, 200 (1883).  And in Commil v. Cisco, this Court said:

The Court is well aware that an “industry has developed in which firms use patents not as a basis for producing and selling goods but, instead, primarily for obtaining licensing fees.” eBay Inc. v. MercExchange, L. L. C., 547 U. S. 388, 396 (2006) (KENNEDY, J., concurring). Some companies may use patents as a sword to go after defendants for money, even when their claims are frivolous.

576  U.S. __, 135 S.Ct. 1920 (2015).

Because troll suits now dominate patent litigation nationwide, their filing patterns have led to an overall concentration of 44% of all patent cases in the Eastern District of Texas in 2015. Among cases initiated 2014 through 2016, one U.S. District Judge on the Eastern District of Texas—Judge Rodney Gilstrap of Marshall, Texas—was assigned almost one quarter of all patent case filings nationwide, more than the total number of patent cases assigned to all federal judges in California, New York, and Florida combined.[2]

This level of concentration is a problem for the legal system whatever one thinks of the decisions of the Eastern District of Texas and regardless of how fair and capable the judges there are. Simply from a logistical standpoint, the current caseload in the Eastern District of Texas is problematic.  If even 10 percent of the 1,686 patent cases assigned to Judge Gilstrap in 2015 go to trial, he will need to preside over three to four patent trials per week every week for an entire year to avoid creating a backlog.

Further, when Congress decided to consolidate patent appeals in the newly-created United States Court of Appeals for the Federal Circuit, it deliberately chose to include both appeals from the United States Patent and Trademark Office and the district courts, so the new court would not hear only appeals from patent owners.  And it considered and rejected proposals to create a specialized district court to hear patent cases.  But the Federal Circuit’s interpretation of § 1400(b) has in practice created just such a court.

The current distribution of patent litigation filings is the result of strategic behavior by a specific type of patent enforcer, not an artifact of proximity to the original locus of invention or alleged infringement. Forum-shopping plaintiffs will naturally gravitate towards whatever district seems to have the most favorable rules. The effect of the Federal Circuit’s decision to expand patent venue beyond the scope of the statute and this Court’s decisions has been to create a de-facto specialized patent trial court, one chosen by litigants on one side rather than by Congress.

CONCLUSION

The Federal Circuit’s permissive venue rule has fundamentally shaped the landscape of patent litigation in ways that harm the patent system, by enabling extensive forum shopping and forum selling, supporting opportunistic patent litigation by patent trolls, and creating undue case concentration.  This Court should grant certiorari in order to curb abuse of venue based on its misinterpretation of § 1400(b).

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[1] No person other than the amici and their counsel participated in the writing of this brief or made a financial contribution to the brief. Letters signifying the parties’ consent to the filing of this brief are on file with the Court.

[2] According to Lex Machina, between January 1, 2014 and June 30, 2016 Judge Gilstrap was assigned 3,166 new patent suits, more than the combined total of all district courts in California, Florida, and New York: 2,656. Love & Yoon, supra, at 5 (collecting these statistics).

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Signed, Professor John R. Allison (Texas); Professor Margo Bagley (Emory); Professor James Bessen (BU); Professor Jeremy Bock (Memphis); Professor Daniel H. Brean (Akron); Professor Michael A. Carrier (Rutgers); Professor Michael W. Carroll (American); Professor Bernard Chao (Denver); Professor Tun-Jen Chiang (George Mason); Professor Colleen V. Chien (Santa Clara); Professor Andrew Chin (UNC); Professor Robert Cook-Deegan (ASU); Professor Rochelle Dreyfuss (NYU); Dr. Dieter Ernst (Honolulu); Professor Robin C. Feldman (Hastings); Professor Lee Fleming (Berkeley); Professor Brian Frye (Kentucky); Professor William Gallagher (Golden Gate); Professor Shubha Ghosh (Wisconsin); Professor Eric Goldman (Santa Clara); Professor Bronwyn H. Hall (Berkeley); Professor Yaniv Heled (Georgia State); Professor Christian Helmers (Santa Clara); Professor Joachim Henkel (Technische Universität München); Professor Susan Helper (CWRU); Professor Tim Holbrook (Emory); Professor Herbert Hovenkamp (Iowa); Professor William Hubbard (Baltimore); Dr. Xavier Jaravel (Stanford); Professor Dennis S. Karjala (ASU); Professor Peter Lee (UC Davis); Professor Mark A. Lemley (Stanford); Professor David K. Levine (WashU); Professor David S. Levine (Elon); Professor Doug Lichtman (UCLA); Professor Yvette Joy Liebesman (SLU); Professor Orly Lobel (USD); Professor Brian Love (Santa Clara); Professor Phil Malone (Stanford); Professor Michael J. Meurer (BU); Dr. Shawn Miller (Stanford); Professor Matthew Mitchell (Toronto); Professor Susan Barbieri Montgomery (Northeastern); Professor Sean Pager (Michigan State); Professor Arti K. Rai (Duke); Professor Jacob H. Rooksby (Duquesne); Professor Jorge R. Roig (Charleston); Professor Matthew Sag (Loyola Chicago); Professor Pamela Samuelson (Berkeley); Ana Santos Rutschman (DePaul); Professor Lea Bishop Shaver (Indiana); Professor John L. Turner (Georgia); Professor Jennifer Urban (Berkeley); Professor Eric von Hippel (MIT).

76 thoughts on “TC Heartland Law Professor Amicus Brief

  1. Sanctioned attorney emerges from under rock with junk patent and a desire for more beatings in East Texas:

    The attorney representing Bartonfalls LLC, Jean-Marc Zimmerman, also didn’t respond to interview requests. Zimmerman has represented many patent-holding companies over the years. Several years ago, he was sanctioned for his representation of a company called Eon-Net, and the US Court of Appeals for the Federal Circuit upheld those sanctions in 2011.

    Corporate documents show that Bartonfalls was formed as a Texas LLC in August. Its business office is a virtual office in Plano, a city that’s just inside the borders for the Eastern District of Texas, the venue that it filed its lawsuits in. The only listed manager of Bartonfalls is a paralegal at a small Texas law firm, Stoddard and Welsh.

    link to arstechnica.com

    The attorney representing Bartonfalls LLC, Jean-Marc Zimmerman, also didn’t respond to interview requests. Zimmerman has represented many patent-holding companies over the years. Several years ago, he was sanctioned for his representation of a company called Eon-Net, and the US Court of Appeals for the Federal Circuit upheld those sanctions in 2011.

    Corporate documents show that Bartonfalls was formed as a Texas LLC in August. Its business office is a virtual office in Plano, a city that’s just inside the borders for the Eastern District of Texas, the venue that it filed its lawsuits in. The only listed manager of Bartonfalls is a paralegal at a small Texas law firm, Stoddard and Welsh…

    …[The b0ttom-feeders allege] that websites owned by these large publishers violate the ‘922 patent because when a viewer is done watching an online video, their video players cue up another video and automatically start playing it when the first video ends.

    The US patent system is a j0ke. And it’s because of junky software patents. But patent attorneys gotta eat! And they’re mostly rich white men so let’s coddle them and hand out some more entitlements.

      1. as if there is ANY profession anywhere without its own share of bad actors…

        Oh, that’s a wonderful excuse for looking the other way and pretending that the patenting of logic “on a computer” didn’t create a massive cessp00l in which the worst attorneys could splash about and thrive.

        Please, please, please keep the laughs coming!

        1. It’s not an excuse.

          But your way over the top Field of Rye act is simply not anywhere near appropirate as the ad nauseum ad infinitum “response” that we see from you.

          1. ad nauseum ad infinitum “response”

            Because it was just a total coincidence that some habitual patent tr0ll filed a junk case in East Texas right around the time that a bunch of professors filed an amicus brief in a Supreme Court case in which which the patent venue statute is being construed.

            I had to look really, really hard to find an appropriate and fresh case to highlight the problem that is the subject of the main post.

            Right. Got it.

              1. From the summary of the paper:

                The result has been rampant forum shopping, particularly by patent trolls. 44% of 2015 patent lawsuits were filed in a single district: the Eastern District of Texas, a forum with plaintiff-friendly rules and practices, and where few of the defendants are incorporated or have established places of business.

                I think the technical term for the kind of person you are, “anon,” is “a real piece of work.”

                Please keep the laughs coming.

                1. They do not address the problem.

                  You did not answer my simple question: is the court that you have a problem with acting within their discretion?

                  Try less ad hominem and more simple (and simply inte11ectually honest) answers.

  2. What’s going here is that the SCOTUS has created a body of case law that is essentially equity. A judge absent facts can determine whatever they feel like under the new Alice laws enacted by the SCOTUS.

    But, you see the problem—in equity the judge decides. There is no law. And, in the E.D. Texas they aren’t deciding the way Lemley and his cohorts of anti-patent judicial activist would like. So, they are going after jurisdiction so that Google and the like can pick the judges that will serve them properly.

    You want to fix the problem? Go back to laws and not equity. Go back to ethics and not activist with ends justify the means mentality. Then the judges can apply the law. You see Lemley you are the problem. Your race to the bottom with no ethics or laws and rhetoric geared to sway the ignorant ends up causing more problems than whatever “solution” you desire may solve.

    1. One cannot have it both ways.

      One cannot have the “essentially equity” without the accompanying “discretion” (the item that I place front and center in my comments below).

      Just as I mentioned to Ned in an earlier thread – one cannot obtain the more global nature of a “One World Order” without making it possible to have the Federal item so made be pertinent – as a Federal item – in ANY Federal jurisdiction.

      If one looks at the prongs of the “argument” put forth by the group of academics here, there “argument” falls apart on its own.

      And that’s not even getting to the point that their proscribed “answer” simply does not address ANY problem at the heart of the matter in what may (or may not) be happening at the “local forum” level.

      And since they do not actually address the “problem at the bottom,” what they want is a sham to begin with.

    2. Lemley you are the problem. Your race to the bottom with no ethics or laws

      Try to believe it, folks.

      Patent tr0lls: the purest unadulterated source of ethics and progress
      Some professors writing an amicus brief: “the problem” with the patent system

      LOLOLOLOLOLOLOLOLOL

      And the patent maximalists wonder why they keep losing. It’s funny stuff.

      1. Your “response” here is nonsense and lacks any substance or merit, adding nothing to the dialogue.

        In other words – your usual blight.

          1. You do of course realize that my post responds to you Malcolm – being directly in reply (note the nested numbers).

            Yay ecosystem for the extreme banal attempt at twisting what I posted.

            Is that really all you have to (try to) add to the dialogue, Malcolm?

            Really?

            Try something else.

  3. Because a patent owner might actually win in a jurisdiction that uses normal people in juries! And that’s….that’s….that’s bad!!!!

    1. The juries aren’t the problem because hardly any cases make it to the jury. The problem is NPE b0ttom feeders setting up “residence” in a broom closet in the Banana Republic of East Texas where the local jurists seem intent on promoting a microeconomy based on patent tr0lling.

      For example, born-yesterday Judge Payne recently applied the CAFC’s stillb0rn McWrong decision to breathe life into one of the most ridiculous claims ever drafted:

      1. A method for conveying user location information, comprising:

      interfacing with an administrator that authorizes a first user associated with a first user identification code to access an object location information from a location information source associated with a second user identification code that is different from the first identification code; and

      conveying the object location information to a third user based on an information access code specified by said first user, said information access code being associated with a third user identification code that is different from the first and second user identification codes.

      5. The method of claim 1, wherein the second user identification code is associated with a zone information comprising a coordinate on a map; and wherein at least one of the object location information or zone information is conveyed to the third user based on the information access code.

      6. The method of claim 5, wherein the second user identification code is associated with an object location event information that relates the object location information to the zone information; and wherein at least one of the object location information or the zone information or the object location event information is conveyed to the third user based on the information access code.

      Everybody following that? Apparently these patentees think they are entitled to determine whether three “parties” can use existing technology to communicate information to each other about “object locations.” Because … “computer”! And there’s no eligibility problem because — thanks to the deep thinkers who wrote McWrong — “there are other ways to communicate stuff.”

      At least there’s no First Amendment issues raised by this kind of junk.

      There’s a good chance that McWrong will be one of those “special” CAFC cases that ends up being reversed in a shorter time than it took the CAFC to write the opinion in the first place.

      1. More rant from the site’s biggest whiner.

        The juries aren’t the problem

        No wait:

        the local jurists seem intent on promoting

        So it is the jury?
        No wait:

        born-yesterday Judge Payne recently applied the CAFC’s stillb0rn McWrong decision to breathe life

        So it’s the judge?
        Maybe it’s the law?

        Maybe Malcolm does not really care and only wants to whine.

        “Go figure Folks”

          1. Ohhh my bad.

            Your rant is soooo on target then.

            Hey, here’s an idea, read, understand, and apply post 2.3.2 (you may have to venture further than your usual script)

          2. Great credibility with your new claims of being a Ph.d. and an attorney. Now, if only you would reveal the organization that pays you to blog.

    2. T, you seem to be suggesting that only small town rural area Texans are normal people? [P.S. I was in the Army with a number of them.]

  4. LARGE AUDIENCE DISPLAY SYS. v. TENNMAN PRODS
    link to cafc.uscourts.gov

    An award of attorney’s fees was vacated and remanded because the district court relied on the cancellation of claims in a reexamination to demonstrate that the case was frivolous.

    Second, the district court’s finding that LADS’s claim
    “appears to have been . . . frivolous” is clearly erroneous.
    J.A. 3. The only evidence Appellees provide in support of
    this finding is that the PTO canceled the asserted claims
    in reexamination. The fact that the PTO canceled the
    asserted claims after LADS filed its complaint, without
    more, does not support a finding of frivolousness. Notably,
    in a reexamination proceeding, the PTAB gives claims
    their broadest reasonable construction—making claims
    more susceptible to an obviousness rejection than they
    would be in district court. Next, in reexaminations, the
    PTAB only considers whether the claims are invalid
    under a preponderance of the evidence standard; unlike in
    the district court, no presumption of validity attaches to
    the claims and the question of validity is not measured by
    the clear and convincing evidence standard. While the
    reexamination rejection of asserted claims may be relevant
    to an assertion of frivolousness in some cases, there
    is nothing in this case to justify that conclusion.

    But this case also involves whether filing in the ED Tex by a shell company where they owner never even picked up the key, where the owner resisted transfer, should be considered in determining whether the case was exceptional.

    We leave it the reader to figure out how the Federal Circuit decided that question.

      1. Yes. But the equal protection clause creates a disfavored class and a preferred class. The preferred class funds legal research, contributes to politicians and uses offshore holding companies and intracompany transfer payments to achieve tax (money) benefits. The disfavored class is only motivated by ‘money’ and, therefore, judicial ‘discretion’ is used to dismiss and punish their claims against the preferred class.

  5. As I have said before, all patent cases should be filed in one national patent court, where the actual venue of the trial be set according to the convenience of the parties.

    The rules would be common, and judges would be assigned according to where the national court decided to try the case.

    End of forum shopping.

    1. “Forum shopping” is simply unavoidable given the Supreme Court’s desire for lack of bright line rules and the natural levels of discretion in the court system.

      Once again – trace the problem to the Supremes.

    2. But for that pesky due process analysis Erie ? in that there would be no jurisdiction for all actors to be hauled into your national patent court – your national court and then transfer solution could work.

      1. iwasthere, this is not a state court asserting jurisdiction against someone with whom it has no contacts. This is a Federal Court asserting jurisdiction in the matter of patent infringement that takes place in the US. The minimum contacts here are whether the infringement took place in the US and whether the defendant is found in the US. There is no due process problem.

        1. But is there a forum shopping problem from these academics seeking to avoid a (presumed***) perfectly good forum?

          ***presumed of course because the academics offer no argument for any ill-begotten, illicit, or otherwise indiscretionary behavior IN that forum; offer no direct fixes to any (unnamed) problems in that forum, and seemingly simply want a forum that is more anti-patent.

  6. The use of a District Court in a small Texas town as the plaintiff’s venue of choice for a patent infringement trial was the backdrop to Tuesday’s (Oct. 18th) episode of the tv series “Bull”.

  7. No Professor Crouch
    No Professor Rantanen
    No Professor Hricik
    No Professor Sichelman
    No Professor Ouellette
    No Professor Risch
    No Professor Janis
    No Professor Merges
    No Professor O’Connor

    Lemley/Rai/Samuelson/Bessen gang are all in, as usual.

    Do any law schools discourage their faculty from signing on to amicus briefs like this one?

    1. Do any law schools discourage their faculty from signing on to amicus briefs like this one?

      Some crxppy law schools might do that, I guess. It might offend the donors or something.

      But law professors are out there all the time saying all kinds of ridiculous stuff.

      People choose to engage in certain battles and watch other battles from the sidelines.

    2. The better question is how do ethics, rules of ethics, or the lack thereof, intersect with those attempting to influence the formation of law through such “borrowed” authority.

      And a natural offshoot: just what are the new and impressionably minded lawyers learning by these examples.

      1. The better question is how do ethics, rules of ethics, or the lack thereof, intersect with those attempting to influence the formation of law through such “borrowed” authority.

        Law professors attempting to influence the formation of law are unethical? Please, tell us more. I’m assuming that you wouldn’t have raised this “better question” if you didn’t have some detailed thoughts on the matter.

        1. Not the act itself, mind you.

          But other things like conflicts of interests (oh say being on the board of a massive data using money making corporation), and pursuing philosophical agendas that are not in accord with law (but not being upfront about that, thereby twisting the “borrowed authority.”

          Things like that.

          1. and pursuing philosophical agendas that are not in accord with law (but not being upfront about that, thereby twisting the “borrowed authority.”

            When you attempt to influence the formation of law, which you seem to agree is OK, at least if conflict-of-interest-free, aren’t you by definition pursuing a philosophical agenda that is not in accord with law?

    3. My take: John Duffy and Jim Dabney convinced me on the merits of their statutory argument (although only after I closely read Fourco). However, I am not convinced that there is an inherent policy problem created by concentrating patent cases in a limited number of venues. The Federal Circuit has the power to (and does in fact) substantially police incorrect decisions by lower courts (as well as by the PTO).

      Yes, reworking venue would move cases out of the E.D.Texas, but will that lead to swifter, cheaper, or more accurate justice?

      1. DC: I am not convinced that there is an inherent policy problem created by concentrating patent cases in a limited number of venues.

        Well, it’s certainly theoretically possible for patent cases to be concentrated in a “limited number” of venues and not create any “policy problems”. But as a practical matter we all saw how this played out and I’m not sure there’s anybody (other than the usual self-interested suspects) who wasn’t at least a little bit appalled by the behavior of the tr0lls that the ED Texas appeared to enjoy cultivating.

        1. …and we all know and blindingly accept as Gospel truth all of those “0h n0es” Tr011 stories right?

          I mean, why would Big Corp L I E about that?

          1. Blindingly accept?

            LOL

            More like “I’ve seen so many incredible junky claims asserted there by b0tt0m-feeders holed up in Marshall broom closets that I lost count.”

            You may be easily fooled by your rich white daddies, “anon”. Not all of us are. Forget that lesson at your peril.

      2. The bigger problem is that they are not actually addressing any problem and are merely engaging in a convoluted “extra” – like gingerly putting another band aid on a gushing wound.

        If there is something wrong going on in ANY one jurisdiction, FIX that problem and then flow that fix throughout all the jurisdictions.

        If there is NOT a problem – and this is merely because someone does not like what one jurisdiction is (properly) doing at its legitimate discretions, then why these people are banding together to what amounts the attempt to frustrate legitimate discretion needs to be put under the microscope.

        Keep in mind as well that the direction of the Supreme Court (anti-bright line) is for MORE discretion, not less.

        Separately – I would lay good money done that these professors (signed using their apparent – and borrowed – authority as professors of named schools, do NOT speak for the arm of the schools trying to montize and put into actual practice the innovation that those schools are involved in.

      3. My take: These legal professor briefs should always be viewed from the practical perspective as to how it impacts the other side. For example, the shifty infringer attempting to avoid jurisdiction in any US court through the use of offshore manufacturing and shell company importation agents, leaves the plaintiff searching for jurisdiction in any US District Court in which there are ‘substantial contacts.’ In that case, the ‘resides’ interpretation of 1400 provides the strongest legal basis for venue being at least somewhere. The agenda here being as scenario where only a 337 action could provide jurisdiction but the plaintiff does not meet the domestic industry requirement and does not meet the venue reading proposed here – with a result in a disfavored (stranded with no venue) class of patent owner.

        1. “In that case, the ‘resides’ interpretation of 1400 provides the strongest legal basis for venue being at least somewhere.”

          I don’t understand this statement – Brunette held in 1972 that 1400(b) doesn’t apply to foreign defendants. So there’s no interpretation of 1400 at all for those folks.

          1. Exactly, Mike. For venue purposes, one can sue non US defendants in any district court.

            28 U.S. Code § 1391(c)(3)

            a defendant not resident in the United States may be sued in any judicial district, and the joinder of such a defendant shall be disregarded in determining where the action may be brought with respect to other defendants.

            1. Ok, great so that resolves it: You can sue a defendant not resident in the United States (and you get service) when there is joinder with another defendant (where you assume there is contacts with a venue and it is a US resident). Or do we need to wait for the next law professor brief to advocate this reading of the law, after they get the first bite of the apple.

      4. This is interesting. I actually go 180 degrees the other way. I think there is a problem, not with concentration, but with the stakes being so high based on what district you are in (and you can have this view whether EDTex is getting patent law wrong, or if it is getting it right and everyone else is wrong).

        I’m less convinced, though, by the legal merits. I think that Fourco is strong, but the very explicit re-definition and broadening post VE Holdings makes me wary.

        1. Is that a problem with the level of discretion in and of itself?

          I mean, the stake will be what they are.

          Are you suggesting that discretion itself is a problem if that discretion impinges on something that has an inherent value of a certain level?

          In other words, are you saying that discretion is fine but only for low value things, and for high value things discretion should be cabined?

          1. I am not pointing to discretion or any other specific point of concern. Different people will have different concerns based on their priors. My only point is the same one I made in my blog post (and article) on this: there is something wrong with a system in which so much rides on where the case is heard. This is not terribly controversial, I don’t think – it’s why the Federal Circuit was formed in the first place. Whether that was the best solution is a debatable question just as whether changing venue rules (as opposed to changing something else) is a debatable question.

            1. Rather a bland answer, I must say, Prof. Risch.

              Saying “something is wrong,” but not saying anything else – not even if this is a matter of discretion (or not), is rather unhelpful.

              Discretion would be a stating point.

              Either the particular area being the subject of forum games (BOTH inclusion and evasion) has something suspect going on or it does not.

              If so, then THAT item would be an example of improper discretion.

              The second option maybe that certain items are currently within the allowed discretion, but that discretion needs (or merely is felt to be needed) to be changed. It would only make sense to learn of this current accepted practice that should not be accepted, fix it in the “games” area and flow that fix throughout the system.

              The last option is that the gaming is being sought – even by this group of “esteemed” academics and the area being desired to be avoided is acting entirely properly within its discretion.

              If this last option is indeed the case, then some OTHER animus (and one NOT in accord with the proper law) is afoot.

              It is this last option that appears to be the case given the notable presence of so many academics known to be anti-patent.

              Of course, we can all pretend otherwise, and wonder years down the road why US innovation has become so decimated…

              1. Yes, it is a bland answer, and purposefully so. The problem is that each of your options is both possible and likely partially true. And so your priors and your interpretation of the evidence will have a lot to do with which you think it is.

                I have never purported to have the solution, which is one reason I didn’t sign on to this brief. I will say that much of the reform effort is Congress’s response to the fact that it can’t make life tenure district courts do what they want.

            2. Mike, litigators go a lot deeper than just looking at the rules in different districts, but they also look to the judges.

              What we need is to take all this out of the patent system by requiring all filings to be made in ONE court, and then have that court assign the case to a convenient district.

              1. Not sure that THAT really helps you Ned.

                Seems like another band-aid on the gushing wound (and an avoidance of the real issue here as to whether what we are seeing – preference wise, including both the preference to BE in a particular forum and the preference to AVOID a particular forum – is based on some otherwise acceptable B discretion, or some improper discretion — which of course if indeed improper is where the correction needs to occur.

                1. Sure, but under that plan, it’s randomly distributed. That gives you some benefits but comes with some costs.

                2. Making it random does NOT solve the underlying “problem” of one jurisdiction using discretion improperly (if that is the case) and only masks – and defeats – that same discretion (if that discretion is proper).

                  You cannot avoid the discretion issue without taking a side on the matter. There is no middle ground here.

                3. Choosing “random” is just as much “an option” when playing the pea under the shell game.

                  And in a sense, choosing random is a lot easier than trying to follow the pea under the fast moving shells.

                  But the choosing random (much like the pea and shell analogy) is a false solution.

                4. …and by this I mean that the aim is to choose the shell that has the pea under it (the correct level and application of jurisdictional discretion).

                  Winging it (or not caring, or making the outcome “random”) is NO answer to the underlying issue. Since it is no answer, it is a false answer.

                5. Making it random does NOT solve the underlying “problem” of one jurisdiction using discretion improperly/i>

                  But it certainly could help to minimize the selective and transparent exploitation of that problem by patent tr0lls (which, again, is the point).

                6. But it certainly could help to minimize the selective and transparent exploitation of that problem by patent tr0lls (which, again, is the point).

                  Your feelings are noted.

                  Answer me a simple question: is the court that you dislike so much operating within their discretion?

      5. Dennis, yes, but the Fed. Cir. does not police any of the more than 90% of patent suits in E.D. TX that are settled before trial or appeal. Most are settled just to avoid defendant discovery and other litigation costs, which not what everyone thinks is “justice.”
        Adding patent suit venue disputes under that statute could indeed delay some litigation. I am old enough to remember when that was the case. But it could also make patent litigation a lot cheaper and faster in those districts that require claim scope definitions and specific infringement assertions a lot earlier, as in N.D. CA.

        1. Paul,

          See 2.3.4.1.1.1.

          Are the items that you are targeting an example of improper discretion?

          (Keep in mind of course that the Supreme Court and its no-Bright-Line stance is for MORE discretion…)

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