32 Internet Companies, Retailers, and Associations File Supreme Court Amicus Brief on Patent Venue

Perhaps only in the sphere of patent litigation can the issue of venue—in what court a case can be filed—take on mammoth significance, and draw the attention of interested observers. Why does venue matter? Well, under the current relaxed regime, over 40% of all patent cases in 2015 were filed in the Eastern District of Texas, and over 75% of all cases were filed in just 10 districts. This over–concentration has proved healthy for patent trolls, but unhealthy for the patent system.

Earlier this month, TC Heartland filed a petition for a writ of certiorari with the Supreme Court, seeking to change this state of affairs. The petition asks the Court to revisit the scope of the patent venue statute, 28 U.S.C. § 1400(b), which says that an accused patent infringer can be sued “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.” Under Federal Circuit case law, this provision has been effectively erased by a ruling that an accused infringer can be sued in any court that has personal jurisdiction over it. For many businesses, that can be effectively interpreted to mean any court in the country. Thus, a statute passed to restrict patent venue to locales with some connection to the accused infringer or the alleged acts of infringement has been made a dead letter.

Today, we filed a friend–of–the–court brief in the Supreme Court on behalf of a diverse coalition of 32 Internet companies, retailers, and industry associations filed urging the high court to take the case of TC Heartland LLC v. Kraft Foods Group Brands, LLC. These leading businesses and trade associations argue that the Supreme Court should step in and stop the rampant forum shopping that has resulted from the evisceration of the patent venue statute by the Federal Circuit. Further, the amici argue that, should the Court pass on this case, it is unlikely to see this issue again anytime soon, because of how infrequently disputes over venue ever make it to the appellate court. If the high court is ever to take up this issue, now is the time, and this is the case.