It was more than a decade ago that The New York Times exposed an anomaly that lawyers had been whispering about for some time. The sleepy, rural East Texas town of Marshall, Texas—“the self-proclaimed Pottery Capital of the World and home to the annual Fire Ant Festival”—had somehow become the nation’s hottest venue for filing high-tech patent suits.

At the time, a seemingly preposterous 9% of patent cases were being brought in the Eastern District of Texas, the federal judicial district encompassing Marshall. That was a bigger portion than any of the nation’s other 93 districts was attracting, even those that were home to major tech or commerce hubs like Silicon Valley, Chicago, Delaware, or New York.

Ten years later the situation has only deteriorated. According to legal analytics company Lex Machina, in 2015 a staggering 44.2% of new patent cases (2,541 suits) were filed in that notorious district, where defendants claim they are pressured to settle by atypical procedures and practices. Last year almost one quarter of all patent suits filed nationwide (1,119 of 4,537) were assigned to a single judge: U.S. District Judge Rodney Gilstrap, of Marshall.

To make matters worse, since 2014, according to a recent study in the Stanford Technology Law Review, more than 90% of the cases in that district have been filed by the most controversial category of patent plaintiff, those pejoratively referred to as patent trolls. These are the investment vehicles, more politely known also as “non-practicing entities” or “patent assertion entities,” that do not make or sell any products of their own, but that buy patents solely for the purpose of demanding royalties from companies that do.

Finally, there is little question that forum-shopping influences outcomes. One academic study found that patent holders prevail 58% of the time when they select the forum, but only 44% of the time when the alleged infringer does.

The case that could put an end to forum shopping

View photos Chief Justice John Roberts (L) and Supreme Court Justices (2NL-R) Anthony Kennedy, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan arrive for U.S. President Donald Trump’s first address to a joint session of Congress, February 28, 2017. REUTERS/Jim Lo Scalzo/Pool More

Yet all this forum shopping could finally come to a screeching halt this year due to a little-heralded case the Supreme Court hears on Monday, March 27.

Given what’s at stake, the suit, TC Heartland v. Kraft Foods Group Brands, is a bit atypical. It was not filed in the Eastern District of Texas, does not involve cutting-edge software or hardware, and does not involve a patent troll. It stems, rather, from a mundane dispute between a unit of Kraft Heinz Co. (KHC) and Heartland Food Products Group over a market segment called “liquid water enhancers,” which are flavored, sweetened, or vitamin-enriched mixes that the consumer adds to water and then drinks. Each company markets versions (under the MiO brand for Kraft, Splash for Heartland) and has pertinent patents.

In 2014 Kraft, based in Northfield, Illinois, sued Heartland, based in Carmel, Indiana, alleging infringement. Kraft chose to bring the suit in Delaware, which is the second most popular district for patent suit filings, with 10% of the total in 2016, per Lex Machina.

The law governing where you are can bring a suit is called venue. For more than a century there have been two federal venue statutes relevant to patent suits against corporate defendants. One of them, enacted in 1897, relates only to patent suits, while the other, which goes back further still, relates to “venue generally.” On its face, the latter appears to define where any federal suit against a corporation may be brought.

The patent-specific law is narrow, requiring that suits be brought where the company resides, which was long construed to mean where it was incorporated. The general statute, on the other hand, is more lax, allowing a corporation to be sued wherever it does business. Since big companies often do business nationwide, in practice the general provision permits them to be sued in nearly any judicial district.

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