Zis is vat happens venue disrespect my sovereignty

by Dennis Crouch

Board of Regents of the University of Texas System, et al. v. Boston Scientific Corporation, No. 19-1110 (Supreme Court 2020).

While we await a handful of interesting state copyright law issues from the US Supreme Court, a new petition from the State of Texas asks for some respect as well. In the case, UT sued Boston Scientific for patent infringement in W.D.Tex. Federal Court.  However, venue turned out to be improper and the case was transferred to D.Del.  Texas has argued that a state has the right to enforce its actions – seek redress for harms against the state — within the borders of its own state.

Supreme Court Petition question:

Whether a state’s sovereign right to try its causes within its borders when there is personal jurisdiction over the defendant renders unconstitutional a federal patent venue statute applied to force the state sovereign to sue the in-state infringer in a federal court located in another state.

[Petition].  In Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493 (1971) the Supreme Court wrote that the Founders believed that “no State should be compelled to resort to the tribunals of other States for redress.”  However, the “Constitutional” limitation is one implicit in the structure of our multi-sovereign federal system rather than with express language in the document.

Sovereign Indignity: Texas must Litigate its Infringement Case in Delaware


9 thoughts on “Zis is vat happens venue disrespect my sovereignty

  1. 4

    Texas lawyer’s sovereign indignity may still be recovering from the Sup. Ct. shutting down the Texas lawyers dandy local counsel gold mine in E.D.TX with the surprising [to the Fed. Cir.] decision to try patent cases where the patent venue statute has always said patent suits should be tried.

    1. 4.1

      I think that you are trying too hard here to impugn attorneys who may be seeking the more patentee-friendly jurisdiction of Texas, Paul.

      I ‘get’ the attempt, but the actual legal issues here vis a vis State Sovereignty are distinct.

  2. 3

    … while on topic,

    There seems to be one particular nuance between this post and the linked prior post:

    The State of Texas appears to have bolstered its position with the inclusion that the aforementioned “Patent Venue” statute (inadvertently?) ALSO pre-empty personal jurisdiction of an infringer directly infringing within the States’s domain.

    It is not clear in the prior discussion that this pre-emption was being considered.

    This of course diminishes a reliance on the (age gone by eclipsed) notion of ‘physically resides’ and ‘regular and established place of business.’

    As I have detailed in conversations past, the courts have mucked up what it means for a company to gain the benefits of doing business IN a State without a reciprocal capture of the risks — as here in the sense of the expanded personal jurisdiction.

  3. 2

    Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493 (1971) seems a weak reed to rely on this. First of all, the statement “no State should be compelled to resort to the tribunals of other States for redress” is dictum about the history of the Supreme Court’s original jurisdiction — which it declined to exercise in that case as a matter of discretion.
    Second, here we are talking about a federal court, not a state court. Texas has to go to the Court of another sovereign, the United States, no matter what it does. And the “other sovereign” is the U.S., which clearly is in a different position than that of other states.
    Venue is just a question of where in the federal system Texas has to sue.
    I don’t see why it is such an affront to the sovereignty of Texas to say you have to sue in the U.S. District Court for the District of Delaware, but not to sue in the U.S. District Court for the Western District of Texas.

    1. 2.1

      I hear you, BL, and had originally supposed likewise (in regards to the court of the US Sovereign as opposed to the court of another State Sovereign).

      UT does appear to address this by noting several cases that implicate that the different Districts of the US Sovereign may be recognized differently. Thus, just choosing one particular District IS distinguishable from being forced to continue a suit in a different District.

      Recognize as well, that attempting to NOT give weight to the view that there ARE regional (even State) effects to the different Districts eliminates the very point at contention in the attempt to move the case from one Federal District to a different Federal District (if they are to be considered the same, then there be no reason to move).

      1. 2.1.1

        I cannot agree with the last point. Venue is a matter of convenience. Congress has chosen to skew venue in favor of the defendant in a patent suit, since the plaintiff initiates the suit. On that score, Texas is no better than any other plaintiff. A private patent plaintiff located in Texas that wanted to bring the same patent infringement suit would have the same venue issue.

        Texas here claims that is status as a sovereign entitles it to some special consideration. THAT I don’t see, since it is going to litigate in U.S. court, not a Texas court.

        IOW, certainly different districts are different, that is the whole point of venue. But that does not mean that that difference has any connection to Texas’s status as a sovereign entity.


          As I noted — Texas does provide cases that indicate otherwise.

          (I am not saying that I buy what Texas is selling, just noting that your response does not appear to reflect that an argument has been provided to counter your statement)



          I hear what you are saying.
          So has Texas.

          Texas has offered its counterpoint with some case law.

          A mere conclusion from you (not even recognizing that Texas has provided a counter point) is not all that compelling.

          It is no longer whether Congress has acted. It is whether Congress MAY act as it has acted.

          There is a huge difference.

  4. 1

    OT (but since particular dual nature of US Sovereignty is not gathering comments…)

    link to phys.org

    Law of Nature
    Applied Science

    How should one go about protecting innovation?

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