A few years ago, a plaintiff could file suit for patent infringement in any jurisdiction where infringing products were sold. Because of its short time to trial and plaintiff-friendly jury pools, the Eastern District of Texas became the forum of choice for many plaintiffs. But in recent years, the courts have clamped down on the liberal venue rules by requiring the transfer to a forum that is “clearly more convenient” in cases where the only connection to the venue is the fact that infringing products are sold there.
To get around this more restrictive rule, plaintiffs began filing suit against multiple defendants from around the country. Because there was no one venue that was clearly more convenient than the plaintiff’s chosen forum in these multi-defendant cases, the case could not be transferred. The resulting proliferation of multi-defendant suits, particularly in the Eastern District of Texas, led to calls to reform the venue rules for patent cases.
Advocates for venue reform were unsuccessful in keeping changes to the venue rules in the 2011 patent reform legislation. However, the America Invents Act added a procedural rule that requires that all defendants in a suit be accused of infringing activities related to the same product or process. Now, plaintiffs will be required to file separate lawsuits against each defendant or group of defendants involved in the same product or process. This will make it more difficult to keep such cases in the Eastern District of Texas because each case will be evaluated on its own for purposes of determining whether another forum is “clearly more convenient.” As a result, other jurisdictions may see a rise in patent filings over time.
Vincent Allen is a shareholder at Carstens & Cahoon, LLP. He focuses on the litigation of intellectual property disputes and the prosecution of patent and trademark applications.
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