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Tech Companies Still Hopeful SCOTUS Will End Patent-Troll Venue

By William Vogeler, Esq. on March 31, 2017 | Last updated on March 21, 2019

It is too early to tell how the U.S. Supreme Court will rule on patent trolling in a closely watched case, but the justices didn't seem especially interested in arguments from 32 internet companies that filed as amicus curiae in the case.

The companies want the Court to cut off "patent trolls," who use venue to channel patent litigation to forum-friendly courts -- primarily in Texas. But some justices seemed tired of hearing about it.

"What's that go to do with this?" Justice Stephen Breyer asked the petitioner's attorney. "Is there some relevance to it?"

Justice Ruth Bade Ginsburg joined in, seemingly unemphathetic to the complaints about shopping for friendlier forums. "Many corporations are incorporated in Delaware," she said. "That's also said to be a friendly forum."

What's Trolling Have to Do With It?

On the face of the pleadings, Texas trolling doesn't have anything to do with the case. TC Heartland v. Kraft is about whether venue for an unincorporated company in a patent case is in Delaware or Indiana.

Kraft sued TC Heartland for infringing its patents on "liquid water enhancers" in Delaware, but the defendant asked the court to move the case to its home state of Indiana. The judge rejected the request, saying the company had shipped products to Delaware.

After one failed appeal, TC Heartland returned to the U.S. Circuit Court of Appeals for the Federal Circuit and then to the U.S. Supreme Court with a different argument. Venue should be only "where the defendant resides."

The Amicus Rush

That argument brought on the amicus rush by internet retailers. They said that venue is too often based on mere allegations of doing business in a plaintiff-friendly forum -- which is Texas 40% of the time.

"In the most popular patent district, the Eastern District of Texas, the patent holder wins 72% of all jury trials," they said in their brief.

The Supreme Court heard arguments only from Kraft and TC Heartland, and had few questions about the amicus claims. The justices did not ignore them, however.

Justices Sonia Sotomayor and Elena Kagan asked respondent's counsel about the claims of forum shopping, and Chief Justice John Roberts asked rhetorically why the court should worry about it. Observers don't expect the court to do anything about it either.

"While the Supreme Court has created rules that favor patent defendants in the past, it's not at all clear that they're going to take this case as another opportunity to hammer the patent trolling business," Joe Mullin wrote for Ars Technica.

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