If there is one truth about the law, it is that it is not static. Changes are happening all the time by virtue of legislative or judicial action. Several relatively recent court actions serve as strong examples in this regard.
In May 2017, the U.S. Supreme Court issued its decision in the case of TC Heartland LLC v. Kraft Foods Group Brands LLC, in which the justices reversed traditional practice and put restrictions on process for bringing intellectual property disputes for resolution.
The IP Case Redirect
Prior to this decision, patent challenges could be brought in any court determining it had personal jurisdiction, which nearly any court could easily do. With the decision, the high court declared that patent infringement claims belong in the district where the alleged infringing entity is incorporated.
One year later, an analysis shows that venue preference in intellectual property cases has shifted from the Eastern District of Texas to the District of Delaware. The Texas district now ranks second in the number of cases, with the Central District of California third.
Inter Partes Review
Another decision of note came in April of this year. In Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, et al., the Supreme Court addressed whether the inter partes review process employed by the U.S. Patent and Trademark Office is unconstitutional. The argument presented was that the use of IPR to resolve patent challenges could amount to a government taking of property without due legal process in court. In its 7-2 ruling, the justices rejected that argument, effectively saying that patents are rights granted by government administration and the IPR challenge process is an extension of that legal authority.
A debate about the changes these decisions have made and other questions related to IP law continues. In Washington, a bi-partisan sponsored bill is under consideration. Advocates say it aims to fix a U.S. patent system that has been damaged by cases like Oil States and by the 2011 America Invents Act, which led to the creation of inter partes review in the first place. Key provisions in the new bill would abolish sections of the AIA.
What all of this reinforces is that the intellectual property law landscape is more like an ocean than solid ground. And the job of protecting IP rights requires that anyone on these seas needs confidence in the legal representation at their side.