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Patent litigation issues to watch in 2018

A couple of significant cases of the past year and one that is expected to be decided by the U.S. Supreme Court in the next several months highlight how the patent law legal landscape is ever in transition. The nature of the patent law environment is so dynamic that answers to questions raised at one point in a case could be different later. This is why when patent issues arise, it's important to have skilled counsel working on your behalf.

One case of note we touched on in an earlier post. It involves a matter argued last fall before the high court regarding whether administrative court processes established by the Patent Office are legal or unconstitutional. Specifically, the question is whether patents are private property rights erasable only by a federal court judge, or whether so-called inter partes reviews by an administrative judge are sufficient.

A decision is not expected before June and if the court rules that inter partes reviews are unconstitutional, analysts suggest it could increase the time and cost of patent case proceedings. So this is something to keep an eye on.

Another decision issued by the high court in recent months is one observers predict will continue to ripple across the country in the course of this year. It has to do with the venue for patent challenges.

The law applying to such challenges requires that patent infringement suits to be filed in jurisdictions where the alleged defendant is incorporated or has a "regular and established place of business."

In recent decades, a broad interpretation of that provision prevailed that resulted in many cases flowing into one particular court in East Texas. But the high court ruling and a decision by the Federal Circuit Court of Appeals drew a brighter line, declaring that venue determination must be based on the defendant's physical place of business.

In the wake of all this, it is expected that debates will continue to rage over the exact limits of the new refinement, and that the arguments will take place in more courts around the country.

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