House IP Subcommittee to Examine Need for Post-Heartland Patent Venue Legislation
The House IP Subcommittee is set to hear a mix of testimony Tuesday supporting and opposing legislation to narrowly address patent infringement lawsuit court venue issues not addressed in the Supreme Court’s recent ruling in TC Heartland v. Kraft Foods Group Brands. Heartland limited eligible court venues for patent infringement suits to be brought only in the district court in which the defendant is incorporated (see 1705220045). House IP Chairman Darrell Issa, R-Calif., and Sen. Orrin Hatch, R-Utah, told us after Heartland they're interested in seeking narrower patent venue legislation than Issa’s 2016 Venue Equity and Non-Uniformity Elimination Act that would close up any remaining loopholes (see 1705230050). The hearing will begin at 10 a.m. in 2141 Rayburn.
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Adam Mossoff, George Mason University Center for the Protection of Intellectual Property senior scholar, planned to say “any further legislation weakening patent owners’ ability to protect their property rights against misappropriation would only contribute to the dangerous decline occurring in our patent system as a result of” Heartland and other “recent Supreme Court cases and legislation.” The ruling won't "change the concentration of patent cases in a very small number of judicial districts, but instead will only shift patents cases to more defendant-friendly districts,” Mossoff said.
Santa Clara University law professor Colleen Chien planned to say she and Villanova University law professor Michael Risch found Heartland would reduce the percentage of patent cases heard in U.S. District Court in Tyler, Texas, from 64 percent to 19 percent. The court was one of a few jurisdictions perceived as friendly to plaintiffs in patent suits. The study said the high court ruling would be more effective than the Venue Act in limiting patent venue.
Lawmakers will need to decide whether they believe Congress needs to further address patent venue rules established in 28 U.S. Code Section 1400(b) given that Heartland doesn’t address language in the statute that also allows lawsuits to proceed in jurisdictions in which a defendant “has a regular and established place of business,” Kellogg, Hansen patent lawyer John Thorne planned to say. Some nonpracticing entities “are trying to maintain the status quo and render [Heartland] meaningless by pushing an interpretation of the patent venue statute that would create venue based on a website and minor activity in the district completely unrelated to the infringement allegations,” Thorne said. “Courts, and Congress if necessary, should resist this outcome.”
Culver Franchising General Counsel Steven Anderson is expected to urge House IP to close loopholes left open that allow “infringement claims against us as well as other restaurants and brick and mortar businesses in the Eastern District of Texas and other remote venues.” It “left open the door for patent trolls to target businesses such as Culver’s” by establishing venue based on the locations of a business’s franchisees, Anderson said. “I urge you to revive patent litigation reform efforts to curb patent trolls’ frivolous behavior, and I urge you to consider every useful change that could increase accountability and shift the economic incentives away from trolls making.”