BIO and AUTM Submit Brief of Amicus Curiae in TC Heartland LLC v. Kraft Food Group Brands LLC (Supreme Court of the United States)

SUMMARY OF ARGUMENT

Petitioner and its amici document issues caused by forum shopping that has resulted in a significant concentration of patent-infringement suits in the Eastern District of Texas. BIO and AUTM share this policy concern. BIO’s members are often defendants in patent suits, not just plaintiffs. And BIO does not believe it is good for the system if more than 40% of patent cases come up through a single district. BIO’s view stems not only from patent suits, but also from many other types of civil litigation where BIO members have been forced to defend themselves in inconvenient and disadvantageous forums.

But attempting to resolve those issues through this case would do significantly more harm than good. This case presents this Court with a binary choice limited to patent suits. Petitioner advocates one side of that choice: a return to the venue regime that prevailed prior to 1988. That would divorce venue decisions in patent cases from the balancing of convenience that occurs as part of transfer decisions in the present system – one of several mechanisms that currently limit the degree to which forum shopping can skew convenience and fairness in
plaintiffs’ favor.

The pre-1988 regime limited venue options to a corporate defendant’s place of incorporation or where it “has committed acts of infringement and has a regular and established place of business.” 28 U.S.C. § 1400(b). That often left few possible forums, and potential defendants could effectively shop for those forums by careful selection of their state of incorporation and whether/where to have regular and established places of business. Patent owners engaged in heated battles in an uncertain effort to litigate anywhere outside the defendants’ state of incorporation. And even if they prevailed, they often would still be limited to a venue in which the defendant had a regular and established place of business but to which they had no connection whatsoever. A return to this regime would greatly inconvenience patent owners (particularly those that are small businesses, like most BIO members), would increase the amount of patent litigation by frequently forcing patent holders to bring related claims in multiple separate actions, and would skew litigation in favor of accused infringers.

Congressional reform efforts in recent years demonstrate the undesirability of a return to the pre-1988 approach. None of the recent reform proposals has advocated a return to that approach. The multiple proposals considered in the last two Congresses, for example, all recognized the importance of including venue options tied to locations where the patent owner is or was engaged in activities related to the patent. Congress should be left to proceed with those better calibrated reform efforts. This Court should either dismiss this case as improvidently granted or should affirm, rather than legislating an obsolete approach to venue that Congress has not endorsed.