Ever since VE Holding, a 1990 Federal Circuit decision, patent holders have been able to sue their adversaries in practically any court in America, leading to competition among jurisdictions to see which one bend the furthest backwards to deliver patent-friendly decisions and so tempt the nation's most litigious companies to sue in their local courthouse.

The all-time-champion patent-troll suck-up is the Eastern District Court of Texas, where patent trolls know that they'll always get a favorable hearing when litigating the garbage they've scraped off the bottom of the pile of the US Patent and Trademark Office's Greatest Misses. It's a process called "Forum Selling," and it's a major contributor to the trillions sucked out of the productive US economy and stuck in the pockets of companies that produce nothing except lawsuits.

A new case at the Federal Circuit, In re TC Heartland, has the power to end Forum Selling and move patent cases back to the Federal Circuit (which is no paragon of good sense on patents, but is still miles better than the Eastern District of Texas).

EFF, Public Knowledge and Engine Advocacy have asked the Federal Circuit to accept an amicus brief urging it to kill Forum Selling and return the Eastern District of Texas to normal a general-purpose court, rather than a money-factory for patent trolls.

"Forum selling" is what we see in the Eastern District of Texas. Namely, judges there have adopted rules that tend to favor patent owners. As we've noted on several occasions, the Eastern District rules allow patent owners with dubious claims and weak patents to more easily leverage the cost of litigation in order to get settlements they don't deserve. This is causing significant harm to those who are on the receiving end of a frivolous lawsuit. Oftentimes it is cheaper to settle even a frivolous case than to fight in hopes you may be able to recover some of your attorneys' fees at the end. This is unfortunately especially true in the Eastern District. It was recently reported that in the four years that Judge Gilstrap has been on the bench, he has never granted a fees motion (as the article points out, he's currently considering at least one now, but it hasn't been ruled on yet). Given that Judge Gilstrap currently has over 1000 patent cases in front of him (per a recent search of data from Docket Navigator), that statistic is remarkable.

It's Time for the Federal Circuit to Shut Down The Eastern District of Texas

[Vera Ranieri/EFF]

BRIEF OF AMICI CURIAE ELECTRONIC FRONTIER FOUNDATION,

PUBLIC KNOWLEDGE, AND ENGINE ADVOCACY

IN SUPPORT OF PETITIONER [PDF]

(Image: United States District Court

Eastern District of Texas)