`
`No. 16-341
`================================================================
`
`In The
`Supreme Court of the United States
`
`--------------------------------- ---------------------------------
`
`TC HEARTLAND LLC,
`
`Petitioner,
`
`v.
`
`KRAFT FOOD GROUP BRANDS LLC,
`
`Respondent.
`
`--------------------------------- ---------------------------------
`
`On Writ Of Certiorari To The
`United States Court Of Appeals
`For The Federal Circuit
`
`--------------------------------- ---------------------------------
`
`BRIEF OF AMICI CURIAE 48 INTERNET
`COMPANIES, RETAILERS, AND ASSOCIATIONS
`IN SUPPORT OF PETITIONER
`
`--------------------------------- ---------------------------------
`
`PETER J. BRANN
`Counsel of Record
`DAVID SWETNAM-BURLAND
`STACY O. STITHAM
`BRANN & ISAACSON
`184 Main St., P.O. Box 3070
`Lewiston, Maine 04243-3070
`(207) 786-3566
`pbrann@brannlaw.com
`
`Attorneys for Amici Curiae
`
`================================================================
`COCKLE LEGAL BRIEFS (800) 225-6964
`WWW.COCKLELEGALBRIEFS.COM
`
`
`
`
`
`i
`
`TABLE OF CONTENTS
`
`Page
`TABLE OF AUTHORITIES .................................
`ii
`INTEREST OF AMICI CURIAE .........................
`1
`SUMMARY OF ARGUMENT ..............................
`3
`ARGUMENT ........................................................
`7
`
` THE COURT SHOULD REITERATE ITS
`LONG-STANDING, NARROW INTERPRE-
`TATION OF THE PATENT VENUE STAT-
`7
`UTE TO STOP FORUM SHOPPING ...........
`CONCLUSION ..................................................... 26
`
`
`
`
`
`
`
`ii
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`Agostini v. Felton, 521 U.S. 203 (1997) ....................... 11
`Beverly Hills Fan Co. v. Royal Sovereign Corp.,
`21 F.3d 1558 (Fed. Cir. 1994) .................................. 10
`Brulotte v. Thys Co., 379 U.S. 29 (1964) ..................... 13
`Brunette Mach. Works, Ltd. v. Kockum Indus.,
`Inc., 406 U.S. 706 (1972) ........................................... 8
`City of Springfield v. Kibbe, 480 U.S. 257 (1987) ....... 12
`Fourco Glass Co. v. Transmirra Prods. Corp., 353
`U.S. 222 (1957) ................................................ passim
`Gross v. FBL Fin. Serv., Inc., 557 U.S. 167 (2009) ....... 12
`In re Apple, Inc., 581 Fed. Appx. 886 (Fed. Cir.
`Sept. 11, 2014) ......................................................... 20
`In re Heartland LLC, 821 F.3d 1138 (Fed. Cir.
`2016) .................................................................. 10, 15
`In re Nintendo of Am., 756 F.3d 1363 (Fed. Cir.
`2014) ........................................................................ 20
`In re TOA Techs., Inc., 543 Fed. Appx. 1006 (Fed.
`Cir. Oct. 3, 2013) ...................................................... 20
`In re Toyota Motor Corp., 747 F.3d 1338 (Fed. Cir.
`2014) ........................................................................ 20
`In re TS Tech USA Corp., 551 F.3d 1315 (Fed.
`Cir. 2008) ................................................................. 20
`In re WMS Gaming Inc., 564 Fed. Appx. 579
`(Fed. Cir. Apr. 23, 2014) ........................................... 20
`
`
`
`
`
`
`
`iii
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`J. McIntyre Mach., Ltd. v. Nicastro, 131 S. Ct.
`2780 (2011) .............................................................. 10
`Kimble v. Marvel Entertainment, LLC, 135 S. Ct.
`2401 (2015) ........................................................ 11, 13
`Scheiber v. Dolby Labs., Inc., 293 F.3d 1014 (7th
`Cir. 2002) ................................................................. 11
`Schnell v. Peter Eckrich & Sons, Inc., 365 U.S.
`260 (1961) .............................................................. 7, 8
`Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22
`(1988) ....................................................................... 18
`Stonite Prods. Co. v. Melvin Lloyd Co., 315 U.S.
`561 (1942) .............................................................. 7, 8
`VE Holding Corp. v. Johnson Gas Appliance Co.,
`917 F.2d 1574 (Fed. Cir. 1990) .................................. 9
`Walden v. Fiore, 134 S. Ct. 115 (2014) ........................ 10
`
`CONSTITUTIONAL PROVISIONS
`U.S. Const. art. I, § 8, cl. 8 ........................................... 25
`
`STATUTES
`28 U.S.C. § 1391 ............................................................ 4
`28 U.S.C. § 1391(c) .............................................. passim
`28 U.S.C. § 1391(d) ........................................................ 8
`28 U.S.C. § 1400(b) .............................................. passim
`28 U.S.C. § 1404(a) ...................................................... 18
`
`
`
`
`
`iv
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`OTHER AUTHORITIES
`Brian J. Love & James Yoon, Predictably Expen-
`sive: A Critical Look at Patent Litigation in the
`Eastern District of Texas, 20 Stan. Tech. L.
`Rev. 1 (2017) .......................................... 17, 19, 24, 25
`Council of Economic Advisors, The Patent Liti-
`gation Landscape: Recent Research and Devel-
`opments (March 2016) ................................. 16, 22, 25
`Daniel Klerman & Greg Reilly, Forum Selling,
`89 S. Cal. L. Rev. 241 (2016) ............................ passim
`Docket Navigator, 2015 Year in Review (2016) .......... 16
`Douglas B. Wentzel, Stays Pending Inter Partes
`Review: Not In The Eastern District Of Texas,
`98 J. Pat. & Trademark Off. Soc’y 120 (2016) .... 15, 22
`Frederick L. Cottrell III, et al., Nonpracticing
`Entities Come to Delaware, Federal Lawyer,
`63 (Oct. 2013) .............................................. 17, 18, 23
`FTC, Patent Assertion Entity Activity (2016) ............. 24
`GAO Report, Patent Office Should Define Qual-
`ity, Reassess Incentives and Improve Clarity
`(June 2016) .............................................................. 16
`Greg Reilly, Aggregating Defendants, 41 Fla. St.
`U. L. Rev. 1011 (2014) .............................................. 16
`J. Jonas Anderson, Court Competition for Patent
`Cases, 163 U. Pa. L. Rev. 631 (2015) ............... passim
`Jeanne C. Fromer, Patentography, 85 N.Y.U. L.
`Rev. 1444 (2010) ................................................ 10, 25
`
`
`
`
`
`v
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`Kevin Benton, New Patent Filings Down in
`2016, Lowest Since 2011: Report (2017) ................. 17
`Kevin M. Clermont & Theodore Eisenberg, Ex-
`orcising the Evils of Forum Shopping, 80 Cor-
`nell L. Rev. 1507 (1995) ........................................... 21
`Kimberly A. Moore, Forum Shopping in Patent
`Cases: Does Geographic Choice Affect Innova-
`tion?, 79 N.C. L. Rev. 889 (2001) ..................... passim
`Paul R. Gugliuzza, The New Federal Circuit
`Mandamus, 45 Indiana L. Rev. 343 (2012) ............ 20
`Professors’ Letter Supporting Venue Reform
`(July 12, 2016) ......................................................... 19
`Ranganath Sudarshan, Nuisance-Value Patent
`Suits: An Economic Model and Proposal, 25
`Santa Clara High Tech. L.J. 159 (2008) ........... 23, 24
`
`
`
`
`
`
`
`1
`
`INTEREST OF AMICI CURIAE*
`Amici Curiae (“Amici”) – 41 companies and 7 asso-
`
`ciations – submit this brief in support of Petitioner be-
`cause they are all too familiar with the effects of forum
`shopping in patent cases, and thus support the revital-
`ization of the specific patent venue statute, 28 U.S.C.
`§ 1400(b).
`
`Amici companies are: Acushnet Company; Adobe
`
`Systems Inc.; ASUS Computer International; Balsam
`Brands Inc.; Bass Pro Shops, LLC; Betterment Hold-
`ings, Inc.; Campmor, Inc.; Carbonite, Inc.; Christian
`Book Distributors, Inc.; Crutchfield Corporation; eBay
`Inc.; Etsy, Inc.; FedEx Corporation; HP Inc.; HTC
`America, Inc.; IAC/InterActiveCorp; Jockey Interna-
`tional, Inc.; Kickstarter, Inc.; Lecorpio, LLC; L Brands,
`Inc.; L.L. Bean, Inc.; Macy’s, Inc.; MediaFire, LLC;
`Minted, Inc.; NeuLion, Inc.; NetApp, Inc.; Newegg Inc.;
`Oracle Corporation; Overstock.com, Inc.; QVC, Inc.;
`Parke-Bell, Ltd.; Pegasystems Inc.; Red Hat, Inc.; Red
`Lion Hotels Corporation; SAS Institute Inc.; SAP
`America, Inc.; Symmetry LLC; VIZIO, Inc.; Walmart
`Stores, Inc.; Wayfair, Inc.; and Xilinx, Inc.
`
`
`* Pursuant to S. Ct. R. 37.6, counsel for Amici represent that
`
`they authored this brief in its entirety and that none of the parties
`or their counsel, nor any other person or entity other than Amici
`or their counsel, made a monetary contribution intended to fund
`the preparation or submission of this brief. Pursuant to S. Ct. R.
`37.3(a), counsel for Amici represent that Petitioner filed a general
`consent to the filing of amici curiae briefs, that Respondent con-
`sented to the filing of this brief, and that a copy of Respondent’s
`consent is being filed with this brief.
`
`
`
`
`
`2
`
`Amici associations are: Computer and Communi-
`
`cations Industry Association (which represents a wide
`range of companies in the computer, Internet, infor-
`mation technology, and telecommunications indus-
`tries); Entertainment Software Association (which
`represents nearly all major U.S. publishers of com-
`puter and video games for video game consoles,
`handheld devices, personal computers and the Inter-
`net); The Internet Association (which consists of 40 of
`the world’s leading Internet companies); National Re-
`tail Federation (which is the world’s largest retail
`trade association, representing retailers from the
`United States and more than 45 countries); North Car-
`olina Chamber (which is North Carolina’s largest,
`broad-based business advocacy organization with over
`35,000 members); North Carolina Technology Associa-
`tion (which has over 750 members and focuses on ad-
`vancing North Carolina’s tech industry); and The
`Retail Litigation Center, Inc. (which advocates in the
`courts for the leading retailers in the United States).
`
`At first glance, Amici appear to have more differ-
`
`ences than similarities. With corporate headquarters
`from Maine to California, some are long established
`companies, while others are start-ups. Some have
`brick-and-mortar stores located across the country,
`while others have only an Internet presence. Some sell
`products that they manufacture, while others sell ser-
`vices or software.
`
`Amici, however, share at least one thing in com-
`
`mon – collectively, they or their members have been
`sued, repeatedly, for patent infringement in one of the
`
`
`
`
`
`3
`
`handful of districts that hear the vast majority of all
`patent cases. These districts generally are located hun-
`dreds or thousands of miles from Amici’s corporate
`headquarters and from Amici’s activities accused of in-
`fringement. Venue is often based on no more than alle-
`gations that Amici do business in the district by
`placing a small percentage of their allegedly infringing
`products into the stream of commerce that end up in
`the district, or that their allegedly infringing websites
`can be viewed by individuals in the district. In other
`words, under current Federal Circuit caselaw and the
`realities of modern e-commerce, Amici can be sued in
`virtually any district in the country and they are sued
`again and again in inconvenient districts preferred by
`plaintiffs. Amici have a concrete interest in the ques-
`tion whether there is any limitation on venue in patent
`cases under 28 U.S.C. § 1400(b).
`
`--------------------------------- ---------------------------------
`
`SUMMARY OF ARGUMENT
`Amici agree with Petitioner that, as this Court has
`
`ruled repeatedly, the patent venue statute imposes
`real restrictions on venue, and the Federal Circuit’s
`contrary view should be rejected. Based on their expe-
`rience in the trenches, Amici briefly address the mer-
`its, but primarily focus on the real-world consequences
`of the Federal Circuit’s misreading of the patent venue
`statute, which has led to pervasive and pernicious fo-
`rum shopping.
`
`
`
`
`
`4
`
`Before turning to the consequences of the Federal
`
`Circuit’s error, Amici note that this is not a difficult
`case. In the nineteenth century, Congress passed a
`statute to restrict venue in patent cases, 28 U.S.C.
`§ 1400(b), to correct abuse of the general venue statute
`(later codified at 28 U.S.C. § 1391) in patent cases,
`which allowed alleged infringers to be sued almost any-
`where. This Court repeatedly interpreted the patent
`venue statute narrowly, culminating in Fourco Glass
`Co. v. Transmirra Prods. Corp., 353 U.S. 222 (1957),
`which held that under Section 1400(b) a domestic cor-
`poration “resides” where it is incorporated. Although
`Fourco also held that Section 1400(b) is the sole and
`exclusive provision controlling venue in patent in-
`fringement actions, and is not to be supplemented by
`the provisions of Section 1391(c), the Federal Circuit
`nevertheless relied upon a later amendment to Section
`1391(c) to conclude that this Court’s narrow reading of
`Section 1400(b) in Fourco was no longer operative. Suf-
`fice it to say, the Federal Circuit cannot overrule this
`Court, and neither this Court nor Congress has ever
`overruled Fourco or materially amended Section
`1400(b). Nothing more is needed to reverse the deci-
`sion below.
`
`Based upon its erroneous interpretation of Section
`
`1400(b), the Federal Circuit has concluded that venue
`in patent cases is synonymous with personal jurisdic-
`tion. Combined with its embrace of an expansive the-
`ory of personal jurisdiction, the Federal Circuit
`effectively has held that venue in a suit against an
`
`
`
`
`
`5
`
`alleged corporate infringer is proper in almost any dis-
`trict in the country. Stated differently, the statute that
`was passed to restrict venue in patent cases has now
`been interpreted to apply more expansive venue rules
`for corporations in patent cases than in non-patent
`cases.
`
`Extensive statistical evidence and academic re-
`
`search demonstrate that the Federal Circuit’s ap-
`proach has resulted in rampant forum shopping. By
`2001, 29% of all patent cases were filed in only five of
`the 94 districts, and 44% of all patent cases were filed
`in 10 districts. Since that time, forum shopping has
`dramatically accelerated. Between 2007 and 2015, 52%
`of all patent cases were filed in only five districts, and
`66% of all patent cases were filed in 10 districts. In
`2016, 44% of all patent cases were filed in only two dis-
`tricts, the Eastern District of Texas and the District of
`Delaware, the district in which this case arose. Since
`2014, a single judge in the Eastern District of Texas
`has handled one-quarter of all patent cases nation-
`wide. Recent scholarly studies have concluded that the
`most popular patent districts compete to adopt proce-
`dures that will – and do – attract plaintiffs to their dis-
`tricts.
`
`Choice of forum plays a critical role in the outcome
`
`of patent litigation. Generally in federal litigation,
`plaintiffs’ chances of winning drop from 58% in cases
`in which there is no transfer to 29% in transferred lit-
`igation. In patent cases, the patent holder wins more
`often than not when it selects the forum of an infringe-
`ment action, and the alleged infringer wins more often
`
`
`
`
`
`6
`
`than not when it selects the forum by filing a declara-
`tory judgment action. In the most popular patent dis-
`trict, the Eastern District of Texas, the patent holder
`wins 72% of all jury trials. In the districts that hear
`the most patent cases, courts are less likely to transfer
`cases or to grant summary judgment, ratcheting up the
`pressure on accused infringers to settle even weak pa-
`tent cases in the face of the prospect of extended, ex-
`pensive
`litigation. If plaintiffs can sue alleged
`corporate infringers in any district in the country, it
`only stands to reason that they will choose to do so in
`the handful of districts in which they are most likely
`to prevail or to extract a settlement.
`
`There is no substitute for properly interpreting
`
`the patent venue statute. Motions to transfer venue on
`convenience grounds are not an adequate workaround.
`Although defendants can move to transfer venue, such
`motions are committed to the discretion of the district
`court, are not decided promptly, and are often denied.
`Almost never appealed after a final judgment, defen-
`dants occasionally file a mandamus petition to the
`Federal Circuit, but mandamus petitions concerning
`venue are denied nearly 70% of the time. Accordingly,
`motions to transfer are not a stopgap solution to forum
`shopping.
`
`Forum shopping harms the legal system by creat-
`
`ing inequities in which plaintiffs often can make an
`outcome-determinative choice by selecting venue, and
`by causing inefficiencies in which cases are litigated
`far from the location of the parties, the alleged in-
`fringement, and the evidence. Indeed, forum shopping
`
`
`
`
`
`7
`
`in patent litigation adversely affects innovation, which
`is contrary to the constitutional purpose of the patent
`system, namely, to promote the progress of science and
`useful arts. Justice cannot be administered blindly and
`fairly if one of the parties can engage in forum shop-
`ping in order to gain an advantage. To restore justice
`in patent cases, the Court should resuscitate the pa-
`tent venue statute by reaffirming that the Court says
`what it means and means what it says.
`
`--------------------------------- ---------------------------------
`
`ARGUMENT
`THE COURT SHOULD REITERATE ITS LONG-
`STANDING, NARROW INTERPRETATION OF
`THE PATENT VENUE STATUTE TO STOP FO-
`RUM SHOPPING.
`Congress Enacted a Restrictive Patent
`
`Venue Statute. This case concerns the scope of the
`special patent venue statute, 28 U.S.C. § 1400(b): “Any
`civil action for patent infringement may be brought in
`the judicial district where the defendant resides, or
`where the defendant has committed acts of infringe-
`ment and has a regular and established place of busi-
`ness.” In 1897, “Congress adopted the predecessor to
`§ 1400(b) as a special venue statute in patent infringe-
`ment actions to eliminate the ‘abuses engendered’ by
`previous venue provisions allowing such suits to be
`brought in any district in which the defendant could be
`served.” Schnell v. Peter Eckrich & Sons, Inc., 365 U.S.
`260, 262 (1961) (quoting Stonite Prods. Co. v. Melvin
`Lloyd Co., 315 U.S. 561, 563 (1942)). The patent venue
`
`
`
`
`
`8
`
`statute “was designed ‘to define the exact jurisdiction
`of the . . . courts in these matters,’ and not to ‘dovetail
`with the general [venue] provisions.’ ” Schnell, 365 U.S.
`at 262 (ellipsis and brackets added by Court and quot-
`ing Stonite, 315 U.S. at 565-66).
`
`“As late as 1957 we have held § 1400(b) to be ‘the
`
`sole and exclusive provision controlling venue in pa-
`tent infringements actions.’ ” Schnell, 365 U.S. at 262
`(quoting Fourco Glass Co. v. Transmirra Prods. Corp.,
`353 U.S. 222, 229 (1957)). In Fourco, the Court held
`that “28 U.S.C. § 1400(b) is the sole and exclusive pro-
`vision controlling venue in patent infringement ac-
`tions, and that it is not to be supplemented by the
`provisions of 28 U.S.C. § 1391(c).” Fourco, 353 U.S. at
`229. There, the Court held that a corporation “resides”
`where it is incorporated. See id. at 226.
`
`In its last word on this subject in 1972, the Court
`
`concluded that 28 U.S.C. § 1391(d), and not 28 U.S.C.
`§ 1400(b), dictated the venue of a patent infringement
`lawsuit against a foreign corporation that does not “re-
`side” in any district, but noted its prior cases had con-
`cluded that for domestic corporations, “Congress
`placed patent infringement cases in a class by them-
`selves, outside the scope of general venue legislation.”
`Brunette Mach. Works, Ltd. v. Kockum Indus., Inc., 406
`U.S. 706, 713 (1972). Neither the Court nor Congress
`has revisited the scope of Section 1400(b) since Bru-
`nette.
`
`
`
`
`
`9
`
`The Federal Circuit Nevertheless Elimi-
`
`nated the Limitations of the Patent Venue Stat-
`ute. Although this Court held that Section 1400(b)
`should be interpreted strictly according to its plain
`meaning without supplementation by Section 1391(c),
`see Fourco, 353 U.S. at 229, the Federal Circuit never-
`theless concluded that Congress changed “the long-
`standing interpretation of the patent venue statute” in
`1988 when it amended the definition of “resides” in 28
`U.S.C. § 1391(c). See VE Holding Corp. v. Johnson Gas
`Appliance Co., 917 F.2d 1574, 1575 (Fed. Cir. 1990). Ap-
`plying that amended definition, the court concluded
`that “[n]ow, under amended § 1391(c) as we here apply
`it, venue in a patent infringement case includes any
`district where there would be personal jurisdiction
`over the corporate defendant at the time the action is
`commenced.” Id. at 1583 (brackets added). In other
`words, the Federal Circuit concluded that the patent
`venue statute enacted to restrict venue in patent cases
`no longer imposed any additional restrictions on venue
`for corporations. See also Kimberly A. Moore, Forum
`Shopping in Patent Cases: Does Geographic Choice Af-
`fect Innovation?, 79 N.C. L. Rev. 889, 897 (2001) (VE
`Holding “rendered superfluous the patent venue stat-
`ute for corporate defendants”).
`
`The Federal Circuit likewise has adopted an ex-
`
`pansive view of personal jurisdiction, a view that ap-
`pears more expansive than that endorsed by this
`Court:
`
`
`
`
`
`
`
`10
`
`Despite the Supreme Court’s recent decisions
`questioning the “stream of commerce” theory
`of personal jurisdiction in product liability
`cases, the Federal Circuit has held that juris-
`diction is proper if the accused products are
`sold in the forum state, whether those sales
`are made directly by the alleged infringer or
`through established distribution networks.
`Because most accused infringers are corpora-
`tions whose products are sold nationwide,
`most patent plaintiffs can sue in any district.
`
`Daniel Klerman & Greg Reilly, Forum Selling, 89 S.
`Cal. L. Rev. 241, 248 (2016) (footnotes omitted); com-
`pare J. McIntyre Mach., Ltd. v. Nicastro, 131 S. Ct. 2780
`(2011), with Beverly Hills Fan Co. v. Royal Sovereign
`Corp., 21 F.3d 1558 (Fed. Cir. 1994); see also In re
`Heartland LLC, 821 F.3d 1138, 1343-45 (Fed. Cir. 2016)
`(rejecting argument that Walden v. Fiore, 134 S. Ct.
`115, 121 n.6 (2014), overruled or limited Federal Cir-
`cuit’s specific jurisdiction jurisprudence).
`
`“Due to weak personal jurisdiction and venue con-
`
`straints, a patentee can usually ‘choose to initiate a
`lawsuit in virtually any federal district court.’ ” Kler-
`man & Reilly, supra, 89 S. Cal. L. Rev. at 247 (quoting
`Jeanne C. Fromer, Patentography, 85 N.Y.U. L. Rev.
`1444, 1451 (2010); see also Moore, supra, 79 N.C. L. Rev.
`at 901 (“With borderless commerce the norm and with
`lax jurisdiction and venue requirements, plaintiffs in
`patent cases have an unfettered choice of where to
`bring suit.”). The problems that arise from conflating
`the venue and personal jurisdiction determinations
`are exacerbated in e-commerce patent actions accusing
`
`
`
`
`
`11
`
`a feature of a website of infringement when the web-
`site is operated by the defendant from its distant cor-
`porate headquarters and merely is available to viewers
`in the district (along with anyone else anywhere in the
`world). In such cases, the stream of commerce seem-
`ingly flows to the ends of the World Wide Web.
`
`The Federal Circuit Overstepped its Role by
`
`Rejecting this Court’s Ruling in Fourco. Notwith-
`standing this Court’s holding that Section 1400(b)
`should be interpreted without regard to Section
`1391(c), the Federal Circuit concluded that an amend-
`ment to Section 1391(c) changed everything. Even if
`correct – which it was not – that was the wrong ap-
`proach. As this Court has made plain on numerous oc-
`casions, “if a precedent of this Court has direct
`application in a case, yet appears to rest on reasons re-
`jected in some other line of decisions, the Court of Ap-
`peals should follow the case which directly controls,
`leaving to this Court the prerogative of overruling its
`own decisions.” Agostini v. Felton, 521 U.S. 203, 237
`(1997) (quotation and brackets omitted); see also Kim-
`ble v. Marvel Entertainment, LLC, 135 S. Ct. 2401,
`2406 n.3 (2015) (in a patent case, the Court quoted
`Judge Posner’s observation that a prior precedent “has
`been severely, and as it seems to us, with all due re-
`spect, justly criticized. . . . However, we have no au-
`thority to overrule a Supreme Court decision no matter
`how dubious its reasoning strikes us, or even how
`out of touch with the Supreme Court’s current think-
`ing the decision seems.”) (ellipsis added by Court and
`quoting Scheiber v. Dolby Labs., Inc., 293 F.3d 1014,
`
`
`
`
`
`12
`
`1017-18 (7th Cir. 2002)). The Federal Circuit could dis-
`agree with Fourco, but it could not overrule it.
`
`The Federal Circuit’s approach is even more dubi-
`
`ous because it concluded Fourco no longer governed in-
`terpretation of Section 1400(b) because Congress
`amended a different statute, Section 1391(c). Even if
`the Court is inclined to consider legislative history, no
`one seriously suggests that Congress claimed to over-
`rule Fourco or amend Section 1400(b) when it amended
`Section 1391(c). Like someone who loses a dollar in a
`dark alley, but looks for it on the road under a street-
`lamp because the light is better, this search for the
`meaning of Section 1400(b) in a different statute is
`doomed to failure. See Fourco, 353 U.S. at 229 (specific
`patent venue statute should be interpreted without re-
`gard to general venue statute); cf. Gross v. FBL Fin.
`Serv., Inc., 557 U.S. 167, 174 (2009) (“When conducting
`statutory interpretation, we must be careful not to ap-
`ply rules applicable under one statute to a different
`statute without careful and critical examination.”)
`(quotation omitted).
`
`This Court has never questioned Fourco or any of
`
`its other prior rulings that venue in patent cases under
`Section 1400(b) is different from venue in run-of-the-
`mill cases under Section 1391(c), and Congress has not
`amended Section 1400(b) since Fourco was decided
`during the Eisenhower Administration. Up to now, Re-
`spondent has not suggested that Fourco and this
`Court’s prior decisions relied upon in Fourco should be
`overruled. Cf. City of Springfield v. Kibbe, 480 U.S. 257,
`258 (1987) (per curiam) (“We ordinarily will not decide
`
`
`
`
`
`13
`
`questions not raised or litigated in the lower courts.”)
`(citations omitted). Particularly in the patent arena,
`the proper forum for overturning Fourco and expand-
`ing venue is not the Federal Circuit, or even this Court;
`it is Congress:
`
`What is more, stare decisis carries enhanced
`force when a decision, like Brulotte [v. Thys
`Co., 379 U.S. 29 (1964)], interprets a statute.
`Then, unlike in a constitutional case, critics of
`our ruling can take their objections across the
`street, and Congress can correct any mistake
`it sees.
`
` *
`
` *
`
`*
`[T]he patent laws do not turn over exceptional
`law-shaping authority to the courts. Accord-
`ingly, statutory stare decisis – in which this
`Court
`interprets and Congress decides
`whether to amend – retains its usual strong
`force.
`
`Kimble, 135 S. Ct. at 2409, 2413 (brackets and ellipsis
`added and citations omitted). Because the Federal Cir-
`cuit could not overrule Fourco, because this Court did
`not overrule Fourco, because no one has asked this
`Court to overrule Fourco, and because the proper fo-
`rum to amend Section 1400(b) and thereby overrule
`Fourco is Congress, this Court should reverse the deci-
`sion below without further ado.
`
`Eliminating Patent Venue Limitations
`
`Caused Extensive Forum Shopping. Not surpris-
`ingly, eliminating the restrictions in the patent venue
`statute has resulted in rampant forum shopping in
`
`
`
`
`
`14
`
`which a handful of districts perceived to be plaintiff-
`friendly now handle the vast majority of patent law-
`suits. This phenomenon is so pronounced today that
`academics refer to it as “forum selling” or “forum com-
`petition” in which districts compete to attract plaintiffs
`to file patent lawsuits in their courts. See Daniel Kler-
`man & Greg Reilly, Forum Selling, 89 S. Cal. L. Rev.
`241 (2016); J. Jonas Anderson, Court Competition for
`Patent Cases, 163 U. Pa. L. Rev. 631 (2015).
`
`Studies conducted after the Federal Circuit effec-
`
`tively eliminated limitations on venue in 1990 have
`shown increasing concentration of patent cases in a
`small handful of districts. In 2001, then-Professor,
`now-Judge, Moore conducted the first major empirical
`study of forum shopping in patent cases following the
`Federal Circuit’s elimination of any limitations over
`venue for corporations. Examining over 10,000 patent
`cases resolved between 1995 and 1999, she concluded
`that 29% of all patent cases were filed in only five of
`the 94 districts, and 44% of all patent cases were filed
`in only 10 districts. See Moore, supra, 79 N.C. L. Rev. at
`902-904. Furthermore, Professor Moore discussed the
`Federal Circuit’s interpretation of the patent venue
`statute and found that “[t]he prevalence of forum shop-
`ping is a direct by-product of the existing statutory
`framework.” Id. at 892. Notably, the district that cur-
`rently handles over 40% of all patent cases, the East-
`ern District of Texas, did not even appear in the list of
`the 10 busiest districts in Professor Moore’s study cov-
`ering 1995-99, reinforcing the conclusion that forum
`
`
`
`
`
`15
`
`shopping and not some other factor explains the esca-
`lating concentration of patent cases. See id. at 903.
`
`Since that time, forum shopping in patent cases
`
`has grown markedly worse. Between 2007 and 2015,
`52% of all patent cases were filed in only five districts,
`and 66% of all patent cases were filed in only 10 dis-
`tricts. See Klerman & Reilly, supra, 89 S. Cal. L. Rev. at
`249. By 2013, nearly half of all patent cases were filed
`in only two districts (the Eastern District of Texas and
`the District of Delaware, the district in which this case
`arose), neither of which is a technology or population
`center; and, in both districts, patent cases constituted
`a disproportionate share of each district’s civil docket.
`See Anderson, supra, 163 U. Pa. L. Rev. at 632-33 (28%
`of civil docket in E.D. Tex. and 56% in D. Del.).
`Although Delaware is the state of incorporation for
`many companies, including some of the Amici, which
`thus “reside” in Delaware under the patent venue stat-
`ute as interpreted by this Court, see Fourco, 353 U.S.
`at 326, for many other companies, Delaware is simply
`yet another faraway venue. Cf. In re Heartland LLC,
`821 F.3d at 1340 (Petitioner is Indiana limited liability
`company).
`
`These statistics, if anything, understate the con-
`
`centration of patent cases in a small number of dis-
`tricts because non-practicing entities (“NPEs”), i.e.,
`patent trolls, have no real presence and thus no “home
`court” – accordingly, they are more likely to file suit in
`the districts perceived to be the most plaintiff-friendly.
`See Douglas B. Wentzel, Stays Pending Inter Partes Re-
`view: Not In The Eastern District Of Texas, 98 J. Pat. &
`
`
`
`
`
`16
`
`Trademark Off. Soc’y 120, 123 (2016) (96.2% of law-
`suits filed in E.D. Tex. are filed by NPEs); cf. Council of
`Economic Advisors, The Patent Litigation Landscape:
`Recent Research and Developments, 3 (March 2016)
`(NPEs’ share of patent litigation has increased from
`under 30% in 2009 to over 60% in 2014). And when
`these entities do file suit, they are more likely to
`sue multiple defendants in a single lawsuit (or, more
`recently, file multiple lawsuits against numerous de-
`fendants under the same patent, which are then con-
`solidated for pre-trial purposes). See Greg Reilly,
`Aggregating Defendants, 41 Fla. St. U. L. Rev. 1011,
`1024 (2014) (twice as many defendants sued per case
`in E.D. Tex. than national average); Klerman & Reilly,
`supra, 89 S. Cal. L. Rev. at 249 (in 2010, 10% of the
`patent cases were filed in E.D. Tex., but 25% of all pa-
`tent defendants were sued there). “In 2007, about 20
`percent of all patent infringement defendants were
`named in cases filed in the Eastern District of Texas,
`and this percentage increased to almost 50 percent in
`2015.” GAO Report, Patent Office Should Define Qual-
`ity, Reassess Incentives and Improve Clarity, 16 (June
`2016); see also Council of Economic Advisors, supra, at
`4 (“NPEs were overwhelmingly likely to file suit in the
`Eastern District of Texas or the District of Delaware,
`and these two courts together accounted for 70 percent
`of cases filed by NPEs in 2014.”).
`
`In 2015, over 53% of all patent cases were filed in
`
`only two districts, the Eastern District of Texas (44.2%)
`and the District of Delaware (9.4%), and 67% of all pa-
`tent cases were filed in only five districts. See Docket
`
`
`
`
`
`17
`
`Na
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