24 Pages Posted: 18 Oct 2016 Last revised: 10 Nov 2016
Date Written: October 17, 2016
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.
Keywords: Venue, Jurisdiction, Eastern District of Texas, Patent Assertion Entity, PAE
JEL Classification: O34, K41
Suggested Citation: Suggested Citation
Chien, Colleen V. and Lemley, Mark A. and Love, Brian J. and Rai, Arti K., Brief of Amici Curiae 56 Professors of Law and Economics in Support of Petition for Writ of Certiorari in TC Heartland LLC v. Kraft Foods Group Brands LLC, No. 16-341 (October 17, 2016). Duke I&E Research Paper No. 2016-44; Stanford Law and Economics Olin Working Paper No. 499. Available at SSRN: https://ssrn.com/abstract=2853696 or http://dx.doi.org/10.2139/ssrn.2853696