“Does The Path To The Right Venue Have To Be Narrow?” – Judge Sue Robinson

Interesting article by former D.Delaware judge Sue Robinson in Law360 today – Does The Path To The Right Venue Have To Be Narrow? Her subject, and conclusion, is this:

“The mantra seen in more than one venue decision — that venue statutes should not be given a liberal construction — is based on language from cases resolving discrete legal issues not necessarily related to § 1400(b), or policy considerations and not statutory interpretation. Consider as well the context of this discussion — patent litigation, where the property at issue is constitutionally protected, the subject matter involves cutting-edge technology, and the disputes generally are national in scope. To transform the Olberding dicta into a general principle of statutory construction[29] is, I propose, not mandated by Supreme Court precedent and, at least arguably, not consistent with a just determination of a proper venue as selected by an injured patent owner.”

It’s an interesting analysis of some of the cases discussed by the courts in TC Heartland and In re Cray.

Does The Path To The Right Venue Have To Be Narrow_ – Law360

Marking

And then there’s that pesky marking statute, 35 U.S.C. § 287(a).  Under § 287(a), a patentee or other party selling a patented product under the patent must mark that product with the patent number to provide notice to the public that the product it may be pursuing is patented. (No, there is not a penalty for overuse of the letter “p”.  Why do you ask?)  If they don’t satisfy the marking statute, damages can be limited to the point that the word “presuit” will henceforth cause the patentholder uncontrolled crying fits. The issue of when a plaintiff has the burden of proving compliance with the marking statute at trial was the subject of an interesting order from across the street earlier today.

State Bar of Texas IP Section patent policy subcommittee formed; article on effect of TC Heartland

The Intellectual Property Section of the State Bar of Texas has its latest TIPsheet out (Texas IP, get it?  Patent lawyer humor).  In addition to the chair’s article by Herb Hammond, the issue features an article on Employee – Inventor Remuneration Policies by Sushil Iyer.

This year, the Section’s Patent Committee formed the Patent Policy Subcommittee to provide thoughtful analysis of patent policy issues. The Subcommittee plans to highlight various stakeholder perspectives on policy issues through newsletter articles, with TC Heartland Changes Patent Venue Landscape by yours truly as the inaugural article. The Subcommittee also plans to address patent agent privilege, the constitutionality of inter partes review; patent legislation (e.g., STRONGER Patents Act); and patent eligibility. The Subcommittee is interested in hearing from Section members on these and other issues they would like it to examine.

The subcommittee is chaired by Roshan Mansinghani (roshan@unifiedpatents.com), with members James Hooper (jhooper@conleyrose.com), George W. Jordan III (george.jordan@nortonrosefulbright.com), Cullen Kiker (ckiker@obt.com), Michael Smith (michaelsmith@siebman.com), and William Ramey (wramey@rameyfirm.com).

A copy of my article is attached below.  Again, if you have suggestions as far as topics you’d like to see the committee address, just email any one of us and we’ll pass it to Roshan.

Motion to Dismiss for Improper Venue Granted; Cordis & Cray analyzed

With In Re Cray clarifying to some extent when venue is proper based on the alleged existence of a regular and established place of business, cases are starting to get thumbs up or thumbs down on pending venue motions at an accelerating pace, providing additional analysis on where in the Cordis/Cray continuum they fit.

Like this one.