06 March 2017
Washington DC
Reporter: Barney Dixon

Kraft: It’s Congress’s call


US Congress should address patent venue questions rather than the judiciary, Kraft Foods has argued in its brief to the Supreme Court.

The brief, which was filed with the court on 1 March, argued that TC Heartland’s argument should be “addressed to Congress, which has been actively considering detailed proposals to change patent venue”.

TC Heartland wants the Supreme Court to rule that the patent venue statute is the sole regulation governing where infringement suits can be filed, which would bring so-called ‘forum shopping to an end in the US.

But Kraft argued that TC Heartland’s question has already been answered by a 2011 statute that it “barely acknowledges”.

“The undefined term ‘resides’ or ‘residence’ appears in venue statutes throughout the US code and the lack of a statutory definition had left courts struggling to ascertain the residence of an individual, an unincorporated business or a corporate plaintiff.”

“The definitions adopted in 2011 answered all of those questions, for all venue statutes. And Heartland no longer disputes that under the 2011 definition, it resides in Delaware, where this suit was brought.”

Kraft argued that, instead, TC Heartland contends that Congress meant to leave patent infringement cases out of the statute. “Congress meant to define ‘residence’ for all venue purposes except patent-venue purposes.”

“The text, history, and structure of the venue statutes all refute that argument.”

“Ultimately TC Heartland and its amici are just arguing that, as a policy matter, corporations should enjoy a dramatically broader venue privilege in patent-infringement cases than they enjoy in other cases.”

Kraft added: “That argument should be addressed to Congress, which has been actively considering detailed proposals to change patent venue.”

The case is set for argument in the Supreme Court on 27 March.

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