Brief of Intellectual Property Law Scholars As Amici Curiae in Support of Neither Party, WesternGeco LLC v. Ion Geophysical Corp., No. 16-1011, US Supreme Court

This amici curiae brief was filed on behalf of Intellectual Property Law Scholars in WesternGeco LLC v. Ion Geophysical Corp. in the U.S. Supreme Court. The question presented is: Whether the U.S. Court of Appeals for the Federal Circuit erred in holding that lost profits arising from prohibited combinations occurring outside of the United States are categorically unavailable in cases in which patent infringement is proven under 35 U.S.C. § 271(f). In RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090 (2016), the Supreme Court articulated a two-step method for assessing the extraterritorial reach of a US statute: 1. A court should determine whether the presumption against extraterritoriality has been rebutted—that is, whether the statute gives a clear, affirmative indication that it applies extraterritorially. If the presumption is rebutted, the statute may have extraterritorial reach. 2. But even if the presumption has not been rebutted, a court should look at the focus of the statute. If the conduct relevant to the statute\u27s focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad; but if the conduct relevant to the focus occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory. The brief of amici curiae makes the follow points: 1. The Supreme Court has not squarely answered the question as to whether the presumption against extraterritoriality applies separately to remedial provisions of a statute generally (here whether it applies to § 284). We argue it does. 2. We argue that the territorial reach § 284 necessarily depends the relevant provision of § 271 used to find liability. Here, under § 271(f), the presumption is rebutted (though it would not be generally for a case under § 271(a), with NTP v. Research in Motion may be a counter-example when one looks at the focus at step 2)). 3. We also argue that the Court should offer more guidance as to what happens even if the RJR test is satisfied. RJR Nabisco seems to operate in binary fashion -- either the statute has extraterritorial reach or it doesn\u27t. But Microsoft Corp. v. AT&T Corp., and earlier Supreme Court decision also interpreting 35 U.S.C. § 271(f), suggests that the presumption may still have a role in interpreting a statute. We offer two suggestions on how the presumption should operate in this context. First, courts should seriously and formally consider issues of comity and potential conflicts with foreign law in assessing whether to apply U.S. law extraterritorially. Second, that territoriality should remain relevant in assessments of proximate cause

Brief of Amici Curiae 56 Professors of Law and Economics in Support of Petition of Writ of Certiorari

28 U.S.C. § 1400(b) provides that a defendant in a patent case may be sued where the defendant is incorporated or has a regular and established place of business and has infringed the patent. This Court made clear in Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 223 (1957), that those were the only permissible venues for a patent case. But the Federal Circuit has rejected Fourco and the plain meaning of § 1400(b), instead permitting a patent plaintiff to file suit against a defendant anywhere there is personal jurisdiction over that defendant. The result has been rampant forum shopping, particularly by patent trolls. 44% of 2015 patent lawsuits were filed in a single district: the Eastern District of Texas, a forum with plaintiff-friendly rules and practices, and where few of the defendants are incorporated or have established places of business. And an estimated 86% of 2015 patent cases were filed somewhere other than the jurisdictions specified in the statute. Colleen V. Chien & Michael Risch, Recalibrating Patent Venue, Santa Clara Univ. Legal Studies Research Paper No. 10-1 (Sept. 1, 2016), Table 3. This Court should grant certiorari to review the meaning of 28 U.S.C. § 1400(b) because the Federal Circuit’s dubious interpretation of the statute plays an outsized and detrimental role, both legally and economically, in the patent system

Brief of Amici Curiae 56 Professors of Law and Economics in Support of Petition of Writ of Certiorari

28 U.S.C. § 1400(b) provides that a defendant in a patent case may be sued where the defendant is incorporated or has a regular and established place of business and has infringed the patent. This Court made clear in Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 223 (1957), that those were the only permissible venues for a patent case. But the Federal Circuit has rejected Fourco and the plain meaning of § 1400(b), instead permitting a patent plaintiff to file suit against a defendant anywhere there is personal jurisdiction over that defendant. The result has been rampant forum shopping, particularly by patent trolls. 44% of 2015 patent lawsuits were filed in a single district: the Eastern District of Texas, a forum with plaintiff-friendly rules and practices, and where few of the defendants are incorporated or have established places of business. And an estimated 86% of 2015 patent cases were filed somewhere other than the jurisdictions specified in the statute. Colleen V. Chien & Michael Risch, Recalibrating Patent Venue, Santa Clara Univ. Legal Studies Research Paper No. 10-1 (Sept. 1, 2016), Table 3. This Court should grant certiorari to review the meaning of 28 U.S.C. § 1400(b) because the Federal Circuit’s dubious interpretation of the statute plays an outsized and detrimental role, both legally and economically, in the patent system

Brief of Intellectual Property Law Scholars As Amici Curiae in Support of Neither Party, WesternGeco LLC v. Ion Geophysical Corp., No. 16-1011, US Supreme Court

This amici curiae brief was filed on behalf of Intellectual Property Law Scholars in WesternGeco LLC v. Ion Geophysical Corp. in the U.S. Supreme Court. The question presented is: Whether the U.S. Court of Appeals for the Federal Circuit erred in holding that lost profits arising from prohibited combinations occurring outside of the United States are categorically unavailable in cases in which patent infringement is proven under 35 U.S.C. § 271(f). In RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090 (2016), the Supreme Court articulated a two-step method for assessing the extraterritorial reach of a US statute: 1. A court should determine whether the presumption against extraterritoriality has been rebutted—that is, whether the statute gives a clear, affirmative indication that it applies extraterritorially. If the presumption is rebutted, the statute may have extraterritorial reach. 2. But even if the presumption has not been rebutted, a court should look at the focus of the statute. If the conduct relevant to the statute\u27s focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad; but if the conduct relevant to the focus occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory. The brief of amici curiae makes the follow points: 1. The Supreme Court has not squarely answered the question as to whether the presumption against extraterritoriality applies separately to remedial provisions of a statute generally (here whether it applies to § 284). We argue it does. 2. We argue that the territorial reach § 284 necessarily depends the relevant provision of § 271 used to find liability. Here, under § 271(f), the presumption is rebutted (though it would not be generally for a case under § 271(a), with NTP v. Research in Motion may be a counter-example when one looks at the focus at step 2)). 3. We also argue that the Court should offer more guidance as to what happens even if the RJR test is satisfied. RJR Nabisco seems to operate in binary fashion -- either the statute has extraterritorial reach or it doesn\u27t. But Microsoft Corp. v. AT&T Corp., and earlier Supreme Court decision also interpreting 35 U.S.C. § 271(f), suggests that the presumption may still have a role in interpreting a statute. We offer two suggestions on how the presumption should operate in this context. First, courts should seriously and formally consider issues of comity and potential conflicts with foreign law in assessing whether to apply U.S. law extraterritorially. Second, that territoriality should remain relevant in assessments of proximate cause

The Politics of Growth Management Reform in the States: A Comparative Analysis

This article seeks to advance our understanding of the politics of growth management reform in the American states. First, it builds on prior research on agenda processes in other policy arenas to identify four "ideal" types of growth management reforms with empirical referents in the states: quantum, emergent, convergent and gradualist. Next, the political dynamics associated with each type are culled from the experiences of eight states pursuing such reforms over the past three decades. The article concludes by reviewing the implications of these findings for future research and for those pursuing growth management reforms in the future. Copyright 1993 by The Policy Studies Organization.