Today s Patent Litigation Venue Considerations

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1 Today s Patent Litigation Venue Considerations Presented by: Esha Bandyopadhyay Head of Litigation Winston & Strawn Silicon Valley Presented at: Patent Law in Global Perspective Stanford University Paul Brest Hall, Munger Graduate Residences Friday, October 20, 2017

2 Background

3 Background Patent venue statute limits which judicial districts a case may be filed in: Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business. 28 U.S.C. 1400(b). 3

4 Background where the defendant resides The term resides (for U.S. corporations) was interpreted by the Supreme Court in 1957 to mean the state of incorporation. Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 226 (1957). 4

5 Background In 1988, a separate venue statute (not specific to patent litigation) defining reside[s] more broadly was amended: For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. 28 U.S.C. 1391(c) (1988) 5

6 Background VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1578, 1584 (Fed. Cir. 1990): On its face, 1391(c) clearly applies to 1400(b), and thus redefines the meaning of the term resides' in that section. Result: personal jurisdiction may be found in many districts due to a broad examination of a defendant s contacts with that district, including, e.g., products in the stream of commerce 6

7 Background: Patent Cases Filed by Forum EST District Courts PTAB ITC

8 Background: Patent Cases Filed by District EST TXED DED CACD ILND CAND NJD FLSD NYSD FLMD

9 Background: Patent Cases Filed by Venue TXED DED CACD ILND CAND NJD FLSD NYSD FLMD ALL DCT ITC PTAB

10 Background: Patent Cases Filed in E.D. Tex Docket Navigator searching & Matthew Sag, IP Litigation in U.S. District Courts: , 101 Iowa L. Rev. 1065, 1111 (2016) 10

11 Background: District Court Ranking for Number of Patent Suits E.D. Tex. D. Del. C.D. Cal. N.D. Cal. E.D. Va. Matthew Sag, IP Litigation in U.S. District Courts: , 101 Iowa L. Rev. 1065, 1111 (2016) 11

12 Background: TXED Contested Transfer Motions % % % 70% 60% 80 50% 60 40% 40 30% 20% 20 10% % Granted Partial Denied Granted Partial Denied

13 Background: DED Contested Transfer Motions % 35 90% % 70% 60% 20 50% 15 40% 10 30% 20% 5 10% % Granted Partial Denied Granted Partial Denied

14 TC Heartland

15 TC Heartland where the defendant resides Fourco controls the interpretation of where the defendant resides in patent venue statute (i.e., US corporations reside where they are incorporated) TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct (May 22, 2017) 15

16 Raytheon Co. v. Cray, Inc. (E.D. Tex.) In re Cray (Fed. Cir.)

17 TC Heartland Aftermath Since TC Heartland, focus has shifted to the second prong of venue statute regular and established place of business : Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business. 28 U.S.C. 1400(b). 17

18 Raytheon v. Cray Judge Gilstrap in E.D. Tex. set forth a four-factor test to determine existence of a regular and established place of business 1. defendants physical presence in a venue; 2. defendants prior representations that they have a presence in a venue; 3. benefits received by defendants from a venue, e.g., sales revenue; and 4. defendants targeted interactions with a venue. Raytheon Co. v. Cray, Inc., No cv-1554, 2017 WL , at *11-13 (E.D. Tex. June 29, 2017). 18

19 Raytheon v. Cray House Judiciary Committee chair Bob Goodlatte, R-Va. was quoted as stating: [TC Heartland] was expected to lead to a sharp reduction in cases being filed in one particular district in Texas that seems skilled at attracting patent trolls Unfortunately, one judge in this district has already re-interpreted both the law and the unanimous Supreme Court decision to keep as many patent cases as possible in his district in defiance of the Supreme Court and congressional intent. 19

20 In re Cray The Federal Circuit rejected the E.D. Tex venue test: [O]ur analysis of the case law and statute reveal three general requirements relevant to the inquiry: (1) there must be a physical place in the district; (2) it must be a regular and established place of business; and (3) it must be the place of the defendant. If any statutory requirement is not satisfied, venue is improper under 1400(b). In re Cray Inc., No , 2017 WL , *4 (Fed. Cir. Sept. 21, 2017). 20

21 The Effect of TC Heartland and Cray on Venue Statistics 21

22 Venue Before TC Heartland Cases Filed in 2016 All Others 34% E.D. Tex. 36% N.D. Cal. 4% D. N.J. 4% N.D. Ill. 6% C.D. Cal. 6% D. Del. 10% Docket Navigator Searching 22

23 Venue After TC Heartland Cases Filed Post-TC Heartland E.D. Tex. 13% All Others 39% D. Del. 21% N.D. Cal. 6% D. N.J. 6% N.D. Ill. 6% C.D. Cal. 9% Docket Navigator Searching 23

24 Challenges to Patent Venue after TC Heartland and Cray

25 Challenges to Patent Venue after TC Heartland and Cray Convenience transfers under 28 U.S.C. 1404(a) remain available Courts can find venue proper under TC Heartland but, in the same case, grant a 1404(a) convenience transfer Prowire LLC v. Apple Inc., No. 17-cv-223, 2017 WL , at *7 (D. Del. Aug. 9, 2017) (finding single retail store enough to meet regular and established business prong of Section 1400(b)) MEC Resources, LLC v. Apple Inc., No. 17-cv-223, 2017 WL , at *2 (D. Del. Sept. 15, 2017) (transferring litigation when Apple s single retail store in Delaware was the only connection to the venue). 25

26 Challenges to Patent Venue after TC Heartland and Cray TC Heartland and Cray will likely lead to more 1404(a) convenience-based transfers being sought. D. Del., in particular, has seen a significant increase in patent litigation after TC Heartland; some view D. Del. (which recently had one judge retire and another take senior status) as now more willing to consider a request for a convenience transfer due to increased workload. The statistics bear this out. Since Judge Robinson s transition to senior status in February 2017, D. Del. has granted transfers in 19 cases, nearly double the 11 transfers granted in all of

27 Challenges to Patent Venue after TC Heartland and Cray Talsk Research Inc. v. Evernote Corp., No cv TMD (N.D. Ill. Sept. 26, 2017 Order at 13) Patent owner attempted to file protective action in Delaware (where defendant was incorporated) and dismiss N.D. Ill. Case (where venue no longer proper under TC Heartland). Although plaintiff s choice of venue must be respected (id. at 18), the Court transferred the case to California because the interests of justice weighed in favor of California, which was the center of the accused activity. Id. at

28 Challenges to Patent Venue after TC Heartland and Cray Symbology Innovations LLC v. Lego Systems Inc., No cv-86-awa, 2017 WL (E.D. Va. Sept. 28, 2017 Order at 6). Plaintiff sought to transfer to Delaware; Defendant wanted transfer to Connecticut The Court transferred to Connecticut: Having chosen an improper venue in the first instance, Symbology's attempt to tap its ruby slippers and make another wish is uncompelling. Id. at

29 The State of Venue Analysis Since TC Heartland and Cray

30 Open Issue Being Disputed in Courts Whether the venue specific facts of a parent corporation should apply to its subsidiary, or vice versa. See Blue Spike, LLC v. Caterpillar, Inc., No cv-1361-RWS, 2017 WL , at *2 (E.D. Tex. Sept. 19, 2017); and Manville Boiler Co. v. Columbia Boiler Co. of Pottstown, 269 F.2d 600, 606 (4th Cir. 1959); Symbology, 2-17-cv-86- AWA Sept. 28, 2017, 2017 WL (E.D. Va. Order at 17-18) (declining to impute the physical presence of a Lego subsidiary in Virgina (retail stores) onto the named Lego parent). 30

31 Additional Open Issues Mentioned in Cray Effect of storing documents/products within a judicial district Use of administrative services in a judicial district Nature of relationship between employer/employee (for remote employees) Ability to move without employer approval Employer owns/pays rent How Defendant presents itself to world (e.g. marketing a particular location) 31

32 E.D. Tex. s Continued Dominance: Perceived Advantages Time to trial Broad, self-effecting discovery obligations Reluctance to grant dispositive motions Friendly juries who award big damages Experienced, smart judges unencumbered by criminal docket And plaintiff can game judge selection

33 E.D. Tex. s Continued Dominance: How Are Judges Assigned? Many or most districts assign randomly DED distributes new cases roughly evenly CAND assigns patent and copyright cases district-wide to distribute workload TXED permits plaintiff to choose division Choice of division largely determines judge Judge Gilstrap: Marshall (95%) Judge Schroeder: Texarkana (80%) or Tyler (70%) Beaumont or Lufkin = Clark; Sherman = Mazzant

34 E.D. Tex. s Continued Dominance: Plaintiffs Shop for Venues to Shop for Judges Venue/Judge 2016 Cases Nationwide % TXED Marshall/Texarkana/Tyler Judges % Gilstrap % Payne % Schroeder % Craven/Love/Mitchell % TXED Beaumont/Lufkin/Sherman Judges % DEL (second most popular) %

35 Expected Strategies Plaintiffs likely to be more particular about which Defendants they sue, e.g., suing only some of a set of related corporate entities, based on most favorable venue Plaintiffs may begin to file multiple simultaneous lawsuits and seek consolidation via MDL Defendants may begin filing more declaratory judgment actions in order to obtain a particular transferee venue 35

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