Judge Gilstrap Singled Out in Congressional Hearing as Defying SCOTUS

Yesterday, the House IP Subcommittee on the Courts, Intellectual Property and the Internet conducted a hearing entitled: The Impact of Bad Patents on American Businesses. During the hearing, Chairman Darrell Issa (R-Calif.) and House Judiciary Committee Chairman Bob Goodlatte (R-Va.) did not mince words expressing their displeasure with the EDTX’s handling of the Supreme Court’s recent decision in TC Heartland.

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Continue Reading House IP Subcommittee Slams “Reprehensible” EDTX

Symposium to Assess Trade Secrets

In tomorrow’s Federal Register, the USPTO is announcing a public symposium on issues relevant to the protection of trade secrets, and to assess recent developments such as the Defend Trade Secrets Act (DTSA). The symposium will be held on May 8, 2017, from 9 a.m. to 4 p.m. EDT.…

Guest Post: SCA v. First Quality

With TC Heartland still on deck a the Supreme Court, a look back at the Court’s most recent patent decision SCA v. First Quality by guest poster, Gary Cohen. Some of my thoughts, are posted on IPwatchdog (here).  Back to PTAB news/notes next week.

SCA v. First Quality: Limiting the Application of Laches

By Gary Cohen¹

On March 21, 2017, the U.S. Supreme Court (“SCOTUS”), in SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, No. 15-927 (2017), reversed an en banc opinion from the Federal Circuit holding that laches could be asserted against a claim for damages incurred within the Patent Act’s 6-year limitations period of 35 USC §286.  The SCOTUS asserted that the en banc opinion impermissibly invoked laches to bar legal relief, with such invocation being unwarranted in view of both the SCOTUS’ holding in Petrella v Metro-Goldwyn-Mayer, Inc., 572 U.S. _____ (2014) and the caselaw preceding the Patent Act of 1952.
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Continue Reading Final Thoughts on Patent Laches

Recalibration of Venue Could Change Face of Patent Litigation

As most are well aware, the patent venue statute, 28 U.S.C. § 1400(b), provides that patent infringement actions “may be brought in the judicial district where the defendant resides . . . .” The statute governing “[v]enue generally,” 28 U.S.C. § 1391, has long contained a subsection (c) that, where applicable, deems a corporate entity to reside in multiple judicial districts. In Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222 (1957), the Supreme Court held that §1400(b) is not to be supplemented by § 1391(c), and that as applied to corporate entities, the phrase “where the defendant resides” in § 1400(b) “mean[s] the state of incorporation only.” Id. at 226. The Court’s opinion concluded: “We hold that 28 U.S.C. §1400(b) is the sole and exclusive provision controlling venue in patent infringement actions, and that it is not to be supplemented by the provisions of 28 U.S.C. § 1391(c).” Id. at 229.

In the dispute before the High Court in TC Heartland v. LLC D/B/A Heartland Food Products Group V. Kraft Foods Group Brands LLC., the court will consider the argument that Federal Circuit precedent contradicts Fourco.  The decision in TC Heartland could have a significant impact on patent litigation in this country given the disproportionate share of such cases now in Texas courts.

The petitioner briefing and amicus filings are now in, including the one I filed on behalf of Unified Patents.
Continue Reading TC Heartland Looms Large Over Patent Litigation

Long Awaited FTC Study Offers Little In Terms of New Ideas

Yesterday, the Federal Trade Commission released an extensive study on Patent Assertion Entities (PAEs) (here). Interestingly, the report segmented PAEs into two classes, Portfolio PAEs (100s of patents) and Litigation PEAs (10 patents or less).  

The study pointed out that Litigation PAEs filed 96% of the cases in the study and accounted for 91% of the reported licenses, but only 20% of the reported revenue. On the other hand, 93% of reported Litigation PAE licenses followed a lawsuit against the eventual licensee and 77% were valued at less than the estimated cost of defending a patent lawsuit through the end of discovery—a threshold below which litigation settlements might be considered nuisance value.  

To combat this behavior the FTC proposed familiar ideas.
Continue Reading FTC Study Recommends Changes to Patent Litigation

Stagnant Patent Reform Bills More Appealing in Lame Duck Session

While early 2015 generated a number of competing “patent reform” bills in both the House and Senate, all have long since lost traction. The House Bill was pulled given the widening rift between Senate and House bills, and as a result of intense lobbying. Not much has happened on the legislative front since late summer 2015.

When questioned about the prospect of reform for 2016, The Hill reports that House Judiciary Chairman Bob Goodlatte (R-Va.) said that “timing is everything” for getting patent reform through the lower chamber.  …
Continue Reading Patent Reform for 2016?