“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.

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.

Equitable Remedies Under Ye Old Lanhame Acte

I’m sorry – I just can’t hear about a court “sitting in equity” without wondering whether everyone needs to reach in their briefcase and find their wigs.  (I realize a few may already have them on, and guys, your secret – such as it is – is safe with me). That’s probably not quite what it looked like in Judge Mazzant’s courtroom in Sherman when he pressed “enter” to paste his electronic signature on the opinion in this interesting Lanham Act case dealing with remedies. But a good exposition of the law is always welcome, so let’s see what happened here.