Places Patents Go To See an Adventure in Venue
By Dominic Mayle, Staff Writer
Do we normally think about the Eastern District of Texas? Some people might give us a reason. This court presides over forty-four sparse and bucolic counties, and over patent suits. In 2003 it heard fourteen, then fifty-nine in 2004, and 236 in 2006.[1] There are now over 6,000 filed there from all over the country, almost one out of four such cases.[2] It has made a name for itself as one of the most plaintiff-friendly venues for patent litigation: they win 88% of the judgments.[3]
Abandoned-looking buildings stand throughout Marshall, Texas, housing the fictional headquarters of patent-holding corporations. Many of these firms have no proper employees and no capacity to produce or sell the technology they own.[4] Their patents can be very dubious. A patent uses “claim” language to circumscribe some realm of art within which its holder has exclusive rights.[5] Sometimes these claims are so overbroad that they attempt to cover an entire field of art. Others claim intuitive or frivolous subject matter which people might not regard as having truly been “invented.” I would place Apple’s attempt to patent the “pinch-to-zoom” gesture used on iOS devices in this second category.[6] That patent was issued, and probably would have persevered had it not been for a high-profile lawsuit brought by Samsung. That was a genuine dispute over technology in commercial use, but true “patent trolls” often refuse to license or produce anything. The invention exists only as something to be owned on paper and argued over, providing no benefit to the public at all. They frequently aim to recover more in damages than the reasonable social or technological value of the patented invention itself. Altogether, this behavior is completely unproductive and at odds with any public policy rationale for granting rights in intellectual property.
A good case study in trolling involves the attempt to patent the idea of “podcasting” – where audio or video recordings are distributed serially to playback devices over the internet.[7] Basically, this means that someone claimed to have created the idea of recording sound and storing it on a computer for others to download. These are, of course, typical behaviors on the internet, alone and in combination. This commentator would say that an attempt to patent a simple sequence of ordinary actions is just theft from the public domain. But naturally, an infringement case arose, in the Eastern District of Texas. Critics blame a “very rapid litigation timetable” – a so-called “rocket docket” – which puts pressure on defendants to settle. The District also maintains some unorthodox rules of procedure, like a requirement that both parties consent before a motion for summary judgment may be heard.[8] Even when they are heard, motions are granted at a far lower rate than the nationwide average. All of this makes frivolous cases harder to kill.
Reformers have made a number of proposals in response to these abuses. Chief Justice Ray Rader, formerly of the U.S. Court of Appeals for the Federal Circuit, has proposed limits on onerous discovery requirements, adopting a more typical approach to summary judgment, and a serious effort to redress venue shopping.[9] All these are useful, but things seem likely to continue as they have along the Gulf Coast.
[1] Julie Cresswell, “So Small a Town, So Many Patent Suits,” New York Times (Sept. 24, 2006) (available at http://www.nytimes.com/2006/09/24/business/24ward.html).
[2] Daniel Nazar, “Why Do Patent Trolls Go to Texas? It’s Not for the BBQ,” Elec. Frontier Found. (July 9, 2014) (available at https://www.eff.org/deeplinks/2014/07/why-do-patent-trolls-go-texas-its-not-bbq).
[3] Sam Williams, “A Haven for Patent Pirates,” MIT Tech. Rev. (Feb. 3, 2006) (available at http://www.technologyreview.com/news/405259/a-haven-for-patent-pirates/).
[4] Nazar.
[5] Claim Interpretation, Manual of Patent Examination Procedure § 2111 (U.S.P.T.O. Nov. 4, 2015).
[6] Application Programming Interfaces for Scrolling Operations, U.S. Patent No. 7,844,915 (filed Jan. 7, 2007).
[7] U.S. Patent No. 8,112,504 (filed Mar. 4., 2009).
[8] Brown v. Crawfod County, 960 F.2d 1002 (7th Cir. 1992) (Claiming this practice violates Fed. R. Civ. Pro. 56)
[9] Randall R. Rader, Lecture, The State of Patent Litigation (E.D. Texas Jud. Conf., Sept. 27, 2011), available at http://patentlyo.com/patent/2011/09/rader-patent-litigation.html.
