This is part two of a three part series on BIO’s recently submitted amicus briefs in cases before the Supreme Court as well as the U.S. Court of Appeals for the Federal Circuit.
Spring kicked off yesterday, and with it was the beginning of the confirmation process for U.S. Supreme Court nominee Judge Neil M. Gorsuch. Empty seat or not, SCOTUS has a full plate of decisions to reach this term, patent cases among them.
We’ve already talked about BIO’s position on Impression Products v. Lexmark International (oral arguments begin today), so let’s take a look at another important patent case headed to the Supreme Court next week.
At issue in this case is the determination of venue for patentees and the interpretation of Congress’s venue statute. The court is being asked “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).”
28 U.S.C. § 1400(b) limits the venue of patent cases to 1) the judicial district where he 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. § 1391(c) broadens the definition of residence for venue to be any judicial district where the defendant is subject to the court’s personal jurisdiction. Since patent defendants are generally subject to nationwide personal jurisdiction, venue would be in any jurisdiction.
Given the broad interpretation of 28 U.S.C. § 1391(c), there has been a significant concentration of patent-infringement suits in the Eastern District of Texas, where more than 40% of patent cases are litigated.
BIO and the Association of University Technology Managers (AUTM) submitted an amicus brief supporting Kraft Food Group (the respondent).
In the brief, BIO argues that while it is not good for the patent system to have a concentration of patent cases come up through a single district, “attempting to resolve [these] issues through this case would do significantly more harm than good.”
If the Supreme Court decides in favor of TC Heartland, the venue regime that prevailed prior to 1988 would return, severely inconveniencing patent owners (particularly small businesses) and increase the amount of patent litigation, “forcing patent holders to brin related claims in multiple separate actions, and would skew litigation in favor of accused infringers.”
BIO’s brief further argues that Congressional reform efforts have “recognized the importance of including venue options tied to locations where the patent owner is or was engaged in activities related to the patent.”
BIO and AUTM argue that reform efforts to combat issues with patent venue should be left to Congress, “rather than legislating an obsolete approach to venue that Congress has not endorsed.”
Oral arguments in this case will take place next Monday, March 27, 2017.