Narrower Patent Venue Legislation Still Possible Post-Heartland, Lawmakers Say
The Supreme Court's Monday decision in TC Heartland v. Kraft Foods Group Brands narrows the scope for patent lawsuit venue legislation rather than negating the need, lawmakers and lobbyists said in interviews. Heartland limited eligible court venues for patent infringement lawsuits, overruling Federal Circuit Court of Appeals precedent (see 1705220045).
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The most immediate legislative effect of the Heartland ruling is “there is no need” to continue pursuing the type of patent venue legislation envisioned in the 2016 Venue Equity and Non-Uniformity Elimination Act, House IP Subcommittee Chairman Darrell Issa, R-Calif., told us. The Venue Act would have required at least one of the parties involved in a patent lawsuit be connected directly to the jurisdiction in which the suit is filed (see 1603180057). Sen. Jeff Flake, R-Ariz., spearheaded introduction last year and Issa said he was partnering to seek similar legislation in case Heartland went in a different direction.
It's important to “address the thousands of patent cases that will need to be moved to the correct venue,” particularly cases concentrated in U.S. District Court in Tyler, Texas, Issa said. That district was the venue for 44 percent of patent suits in 2015. Judges elsewhere will need “the support [on patents] that they didn't need before,” Issa said. “These are technical cases that will require more time to do properly. So that's something that [Flake] and I are interested in making sure occurs over the next year.”
Sen. Orrin Hatch, R-Utah, told us he remains interested in pursuing patent venue legislation. He noted particular interest in ensuring there are no loopholes that keep open the possibility of “forum shopping." Hatch identified the patent venue issue in February as one of many items on his “innovation agenda” as chairman of the Senate Republican High-Tech Task Force (see 1702160055).
The ruling does leaves some patent venue issues unresolved, so legislation could be one way of addressing those problems, one tech sector lobbyist said. The top court wasn't able rule on the question of appropriate venue for suits in cases where the defendant is incorporated outside the U.S., the lobbyist said. The Supreme Court was “bound by the language” in 28 U.S. Code Section 1400(b), which determines venue only for companies incorporated in the U.S., the lobbyist said. Congress' power to change the venue language is “pretty broad,” the lobbyist said. A patent venue bill also could address the unanswered question of how to determine venue for defendants that are unincorporated entities, since the ruling sets venue in the locale in which an entity is incorporated, the lobbyist said.
A venue bill inherently moves down on the list of patent law revamp legislative priorities since Heartland, but “there's certainly still an appetite generally” within the tech community for lawmakers to pursue patent bills, said Computer & Communications Industry Association Patent Counsel Joshua Landau. Venue legislation “would have been an easy thing to do” before because “the equities on both sides favored reform,” Landau said. It's likely a revamp of Patent Act Section 101, which defines what constitutes a patentable idea, will now be a top revamp priority, he said.