Roughly one-in-five patent cases are filed in the Eastern District of Texas, making it the busiest patent docket in the nation. This anamoly is the result of a venue law that states that an entity can be sued wherever it is subject to personal jurisdiction. See 28 U.S.C. § 1391(c). Whether a person supports or opposes further revisions to our patent laws, a simple change to the venue statute would redistribute many of the cases pending in the Eastern District of Texas to courts throughout the country.
Why would this matter? Consider that only 23% of motions to stay cases pending IPR are granted in the ED of Texas, as compared to 81% in another busy patent docket, the Northern District of Illinois. Also consider that the nation-wide success rate is about 70% for motions challenging patentability under 35 U.S.C. § 101 and under the Supreme Court's recent Alice decision. But that success rate is only 27% in the ED of Texas.
And the fix is simple. We already have a separate venue statute that governs patent and copyright cases -- 28 U.S.C. § 1400. That statute limits venue to where a defendant resides or where it infringes and has a regular and established place of business but, when the defendant is an entity, that statute has been construed to include the language of section 1391(c). Therefore, making it clear that section 1400 means what it says, or even further limiting section 1400, could limit the places where an entity can be sued for patent infringement to its "home," such as its principal place of business or state of incorporation. This change would push patent cases to a variety of districts, allowing a free-market of ideas and approaches to patent litigation to flourish, and limiting the influence of any one court.