Intellectual Property Law Blog

The Intellectual Property Owners Association (“IPO”) recently endorsed legislation to combat forum shopping in patent litigation.  Forum shopping has become a contested issue in patent litigation in recent years and two patent reform bills—H.R. 1908 and s. 1145—may soon move forward to Congress.

Under the current venue statute for patent cases, a corporation can be sued for patent infringement in nearly any federal judicial district in the country where a plaintiff chooses to sue.  In many cases, plaintiffs choose districts that are considered favorable to patent owners, which have no connection with the parties or the evidence.

In order to minimize the impact of forum shopping, the new legislation would restrict the venue of patent infringement cases to those jurisdictions in which either party resides or in which an act of infringement has occurred and the accused infringer has a regular place of business.  The new act would also permit appellate review of patent claim constructions prior to trial on the merits of the patent infringement claims to ensure that the claim construction used at trial is appropriate.

In support of the legislation, the IPO adopted two resolutions on forum shopping.  The first resolution provides support for “legislation that would…limit venue for civil actions for patent infringement to curb forum shopping by patent owners…”  The resolution further provides that such legislation should “make a corresponding change to limit venue for declaratory judgment actions relating to patents.”

The second resolution adopted by the IPO requests a random assignment system, in which patent cases are equally assigned to judges throughout a judicial district, regardless of the division in the district in which a case was filed.  This resolution is aimed at preventing the practice of filing cases in a particular division in order to increase the chances of having the case assigned to a particular judge.