WASHINGTON D.C. - Patent venue reforms considered by the last Congress are vague and subjective, which could result in confusion and excessive litigation, explains Sidney Rosenzweig in, "Patent Venue Reform:  Congress Takes Two Steps Back," a Progress on Point released today by The Progress & Freedom Foundation.  Rosenzweig proposes simplified legislative language to address forum-shopping issues in patent litigation.  Congress is likely to revisit patent venue reform soon.

In the paper, Rosenzweig, PFF Visiting Fellow, identifies numerous deficiencies in the House and Senate bills.  "Congress's proposals are meant to prevent plaintiffs from choosing advantageous fora in which to bring suit," Rosenzweig explains.  "But the proposals are vaguely written and contain substantial gaps that will ensure that some cases cannot be brought in any venue.  The effect of the enactment of either bill will be to cause a tidal wave of venue-related disputes to drown the federal courts."

Rosenzweig proposes the following revision to 28 U.S.C. § 1400(b) to address the only concrete problem identified by Congress, "namely the lax standard for venue against corporate defendants":

 ‘Notwithstanding subsection 1391(c) of this title, any civil action for patent infringement may be brought against a corporation only in a judicial district--
‘(1) where the defendant has its principal place of business or where the defendant is incorporated;
‘(2) where the defendant has committed a substantial portion of the acts of infringement and has a regular and established physical facility that it controls;
‘(3) where any defendant has committed a substantial portion of the acts of infringement and has a regular and established physical facility that it controls, if there is no other district in which the action may be brought under subsections (1) or (2); or
‘(4) where any defendant has its principal place of business, where any defendant is incorporated, where any defendant may be found, or where any defendant has committed acts of infringement, if there is no other district in which the action may be brought under subsections (1), (2) or (3).’

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.