You Have Taken the Oath, But Can You Do the Job?

seeking the job

According to renowned attorney William K. Thayer, it means the journey has just begun, and it’s likely to be an interesting one! Expect to meet those jobs for people who work with their hands, like carpenters, landscapers and electricians. Also expect to meet, and learn about, white collar occupations like accounting, administrative, and inventory management.

The important thing, notes Thayer, is to choose an area of the law that helps people make their lives better, and then to remain “honest and diligent”.

It sounds like the perfect recipe to top off all those years of hard work, sacrifice, discipline and courage. And it is. In fact, according to the team at The Frugal Lawyer, it’s part of a “learning curve” that new lawyers need to keep in mind, because the law is always changing, expanding, or adding greater dimension.

The Law of Venue

For example, the law of venue. That is, where the trial vis à vis patent holders and patent infringement takes place.

In the most recent development, note Dennis Crouch (Associate Professor, University of Missouri Law School) and Jason Rantmen (Associate Professor, University of Iowa College of Law), a person accused of patent infringement has challenged the Supreme Court to reset the law of venue.

The request, that infringement actions take place either (1) “in the judicial district where the defendant resides” or (2)” where the defendant has committed acts of infringement and has a regular and established place of business” is seen as a vehicle to permit defendants who do not want to be sued in the Eastern District Court of Texas to locate a “more friendly” venue.

Supported by a group of more than 50 law and economics professors, the brief in support of the case (TC Heartland) argues that the Federal Circuit is mistaken in its interpretation of the law and that the venue has promulgated many of the current problems in the patent system.

The Amicus Brief

The Amici brief – so called because it is filed in an appellate court by interested parties rather than litigants to provide additional or more relevant information to the court – is an argument against a court decision to reject the decision in Fourco Glass Co. v. Transmirra Prods. Corp. (353U.S. 222, 223,[1957]) that the only legitimate venue in a patent case is where the defendant is incorporated or has a regular and established place of business.

The Federal Court instead allowed a patent plaintiff to sue anywhere there is personal jurisdiction over the defendant. That is, At a place of business, or home, or alternate domicile, or where product is manufactured or sold.

Job Shopping in Patent Infringement Cases

The result, argues the brief, has been unrestrained venue shopping, particularly by what the brief refers to as “patent trolls”. As an example, the brief notes that 44 percent of patent lawsuits in 2015 alone were filed in the Eastern District of Texas – presumably a friendly venue for plaintiffs.

In addition, the brief charges, 86 percent of 2015 patent cases were filed somewhere other than the jurisdictions specified in the statute (28 U.S.C. § 1400[b]), and goes on to cite instances of this deviation.

If the court were to view the amici brief favorably, and enforce the above-mentioned statute as the letter of the law, it would change the way patent attorneys do business. This would be particularly important information for a newly-fledged patent attorney, who might have to lay the groundwork for a patent suit in a less-than-favorable venue by being extra careful in his information and arguments.

Law is an adventure, Thayer suggests, and only the adventurous need apply. Given the almost daily shifts in procedure and due process, only the adventurous should want to take on the challenge of the law.  

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