Enemies of patent reform have a hard time making up their mind about the court system. On the one hand, their supposedly “conservative” allies claim that the court system is a better place to pursue reform of the patent system, because courts are less likely to make sweeping changes to the system that might hurt it, and are already too happy to give proponents of reform what they want. On the other hand, when they think conservatives aren’t listening, trolls are all too happy to explicitly endorse sweeping legislation from the bench to protect their parasitic business models.
So it’s no surprise that their first argument — that the court system is doing the job of patent reform without Congress intervening — has been proven to be disingenuous hogwash in the previous months. To see the truth of this, you need look no further than the case In re Heartland, in which the company TC Heartland sought to change the venue for hearing its case from Delaware to Indiana. Its reason was based on an arcane provision of the U.S. code, which it argued had been amended in 2011 to require that patent infringement cases be tried in the district court nearest to where the defendant is headquartered, or in the district court nearest to the region where the accuser alleges the infringement took place.
If accepted, this interpretation would have gone a long way to stopping the widespread practice by trolls of hauling their enemies before infamously plaintiff-friendly venues, the king of which is the infamously corrupt East Texas District Court. While such a precedent would not have applied nationwide, it would at least have given relief in one region of the country, and might have laid the groundwork for future relief in other areas, as noted by the blog Techdirt. In other words, it would’ve been a classic case of the court system acting to correct abuses the way enemies of patent reform say they will.
It would have done all this, if that had been the interpretation the court accepted. But, in fact, the Federal Circuit Panel in question shot TC Heartland’s case down, calling it “utterly without merit or logic.” Legal commentators can disagree over how fair this decision was or wasn’t, but one thing is beyond dispute: it showed that the law, as presently constituted, cannot protect against the abusive venue shopping of patent trolls. And indeed, most of the press reported it as increasing the urgency of reform efforts for precisely this reason. And speaking of urgent reform efforts, Sens. Cory Gardner, Mike Lee, and Jeff Flake have since introduced a bill to effect just such changes.
Unlike the trolls, Lee, Gardner, and Flake apparently understand that it is not sufficient to suggest that courts legislate from the bench in defense of their side of this argument. And they share this understanding with 45 professors who recently delivered a letter to the House and Senate Judiciary Committees calling for venue reform.
Good on them! Call me old fashioned, but I think letting the courts legislate in blatant violation of the plain words of the Constitution, of common sense, and of American economic self-interest is a sin against the American constitutional system. However, there is a reason the Founders gave us three branches of government, of which Congress is the most empowered to address the grievances of its people. And when one small, malcontented legal cartel is costing the American economy tens of billions of dollars in wealth every year, I’d say that’s a hell of a grievance.
If the law as presently constituted cannot or will not fix it, and In re Heartland shows that it will not, then it is time to ask our lawmakers to make new laws, so long as those laws are complicit with the Constitution. That’s just good conservative principle, of the kind Leftist parasites will never understand.