Supreme Court May Take Its Chance To End Forum Shopping

Before closing up shop for the holidays, the Supreme Court issued a short order which, among other things, granted the cert. petition filed in TC Heartland LLC v. Kraft Foods Group Brands, LLC. By taking this case, the Court has given hope to those of us concerned about forum shopping, and the over–concentration of patent litigation in a handful of judicial districts, most prominently the Eastern District of Texas and the District of Delaware, which are ground zero for patent troll litigation.

The legal question is somewhat obscure: How should the courts interpret the statute that says where patent infringement lawsuits can be filed? But the real–world consequences could not be more significant. The Federal Circuit has taken a broad interpretation that allows an accused infringer to be sued in any judicial district that has personal jurisdiction over that defendant. That interpretation is at odds with the language and history of the special venue statute for patent cases, which was enacted to limit where patent cases could be filed, not expand venue as far as it can go. The result of the Federal Circuit’s interpretation is the current world in which over 40% of all patent cases last year were filed in the Eastern District of Texas, which is not the site of 40% of all patent infringement or patent–related industry.

We are delighted that the high court has taken the TC Heartland case, which we urged it to do in an amicus brief we filed on behalf of 32 Internet companies, retailers, and industry associations. A holding that the venue statute says what it means—that patent cases can be brought only in jurisdictions in which the accused infringer resides or has committed acts of infringement and has a regular an established place of business—could end the scourge of forum–shopping in patent litigation once and for all.