Forum Shopping and Patent Law-A Comment on TC Heartland

By Bone, Robert G. | Texas Law Review, November 1, 2017 | Go to article overview

Forum Shopping and Patent Law-A Comment on TC Heartland


Bone, Robert G., Texas Law Review


The Supreme Court addressed rules affecting forum-shopping incentives in three cases during its 2016-2017 term.1 This Essay focuses on one of those cases-TC Heartland LLC v. Kraft Foods Group Brands LLC2 In TC Heartland, the Court narrowly interpreted the patent venue statute, 28 U.S.C. 1400(b), to restrict where patentees can file infringement suits. The case involved a technical issue of statutory interpretation, but one that implicated substantial questions of patent policy and promised serious realworld consequences affecting the future of patent litigation, the efficacy of patent law, and even the economic health of communities in East Texas, especially the town of Marshall, Texas. For these reasons, the case attracted widespread public attention. The Court's unanimous opinion, however, ignores this broader context. It focuses narrowly on the statute and defends the holding with a largely textualist interpretation.

This is more than a little surprising. The contrast between the Court's style of reasoning and the decision's real-world consequences could hardly be more striking. It is not surprising that Justices firmly committed to textualism would insist on a textualist analysis even when statutory text offers very limited guidance. But where consequences are so significant, one might have expected Justices of a more pragmatic and functional bent, such as Justice Breyer, to have written a concurring opinion taking note of those consequences as part of a purposive interpretation of the statute. Yet, as I shall argue, constructing a convincing purposive interpretation is not easy to do. In the end, the Court's decision to ignore the broader context might make more sense than it seems at first glance.

The aim of this Essay is to review the Court's decision, assess its possible impact on patent litigation, and analyze its interpretive approach. Part I describes the factual background of the TC Heartland case, summarizes the Court's holding, and explains the broader patent law context that made the case so important and newsworthy. Part II critically examines the Court's reasoning. Part III offers some reasons why it might have made sense for the Court to ignore the broader patent law context despite its key importance to the case.

I. The TC Heartland Case and Its Broader Context

A. Background and Holding

TC Heartland is a lawsuit for patent infringement. The plaintiff-patentee, Kraft Food Group Brands LLC (Kraft), and the defendant, TC Heartland LLC (TC Heartland), are competitors in the market for flavored drink mixes.3 Kraft sued TC Heartland and Heartland Packaging Corporation in the District of Delaware, alleging that the defendants infringed Kraft's patents in liquid water enhancers.4 The defendants filed a motion under Rule 12(b)(3) to dismiss the suit for improper venue, or in the alternative, to transfer the lawsuit to the Southern District of Indiana pursuant to 28 U.S.C. 1406(a).5

Kraft is organized under the laws of Delaware with its principal place of business in Illinois, and TC Heartland is organized under the laws of Indiana with its headquarters in Indiana.6 TC Heartland is not registered to do business in Delaware, nor does it have any supply contracts in Delaware, hire any local salespeople, or have any other significant "local presence" in Delaware.7 However, TC Heartland ships allegedly infringing products into Delaware.8

The district court held that venue was proper based on the Federal Circuit's interpretation of the patent venue statute.9 TC Heartland filed a petition with the Federal Circuit for a writ of mandamus, and the Federal Circuit denied the petition.10 The Supreme Court granted certiorari on the venue issue and reversed.11

The precise legal issue in the case is a technical one. Section 1400(b) creates two distinct grounds for venue: (1) in the judicial district "where the defendant resides," or (2) in any district "where the defendant has committed acts of infringement and has a regular and established place of business. …

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