Early this week, the Supreme Court dropped yet another historic ruling on the subject of patent law. In fact, not only was the decision historic, but it was historically correct. That case, TC Heartland v. Kraft, a seemingly innocuous dispute over flavored drink mixes, amounts to a sweeping rejection of the legal strategy employed by multiple patent trolls. Specifically, the case places limits on where a patent infringement suit can be filed — a clear rebuke to the troll strategy of venue shopping and trying to drag their cases before absurdly friendly judges, such as Rodney Gilstrap of the Eastern District of Texas, regardless of whether they actually have business in those judges’ districts.
To be sure, for those conservatives who actually want a rational patent policy, there’s plenty of good news in the decision, not just doctrinally, but politically. With the case being decided 8-0 (Justice Gorsuch apparently took no part), and the opinion being written by no less a conservative jurisprudential eminence than Clarence Thomas, it will be very hard for the troll lobby to keep up its spurious claims that patent reform is some anti-constitutional adventure, and that the trolls are put-upon innovators exercising their constitutional right to property, rather than legalized extortion rackets. Typically, conservative constitutionalism doesn’t get voted down 8-0 in the Supreme Court, with Justice Thomas pronouncing the sentence of death. Furthermore, the limits put on patent lawsuits will definitely provide relief for many victims of the troll-and-trial-lawyer coalition of the job killing.
But with that said, TC Heartland should by no means be taken as a sign that supporters of patent reform can get complacent. There are numerous very good reasons, in fact, why the opposite should be the case.
First of all, while it’s no doubt a relief to see trolls slapped down in court… unanimously… for the fourth time… let’s also remember that this is not a problem that courts can or should solve on their own. That’s because court cases are just that: cases. They involve specific sets of facts, specific legal questions, and specific participants. Courts rarely respond to the invitation to transform such specific legal wrangling into the occasion for the kind of sweeping policy changes that a legislature can consider, and nor should they. Big shifts in policy and law are, from a constitutional perspective, properly the province of legislatures, whether at the federal or state level, both to safeguard the province of democratic governance, and also because legislatures do not require the presence of individual disputes to act. There is a reason that the troll lobby tries to lull its opponents into complacency by arguing that we should leave these disputes to the courts: because trying to fix the systemic problem of patent trolling through individual cases would be, at best, a years-long game of whack-a-mole.
And speaking of whack-a-mole, guess what? Not 24 hours after the decision was announced, patent lawyers were already spreading talk of loopholes. For example, some point out that if a local retailer carries a product that trolls decide is “infringing,” they could target the retailers for extortion rather than the manufacturers. In other words, rather than suing Apple directly for a spurious patent charge, a troll could sue an Apple store in the Eastern District of Texas, or a local Apple manufacturing plant, thus dragging the whole cycle back to their preferred star chamber. This is not only bad news for businesses, but for the people in districts with patent-friendly judges, who might swiftly find retailers fleeing their communities altogether for fear of lawsuits. Would such tactics eventually end up before the Supreme Court? Possibly, but how many years would that take, and how many jobs and businesses would suffer as a result? And even if the Court did rule — again — unanimously against the tactic, how long would it take before another workaround was discovered?
In other words, the TC Heartland case should be seen not as license for patent reformers to cool their heels, but rather as good news that can galvanize them to demand full legislative solutions in the spirit of the court’s ruling. Venue reform still has bipartisan support, and with arguably the most pro-business administration since Reagan in office, there should be no question of its being an easy sell.
In short, while supporters of patent reform can take comfort in their cause having a friendly ear in the docket of the Supreme Court, their proper goal should be to see it succeed under the gavel of Speaker Ryan and under the pen of President Trump.