Patent holders that make stuff tend to dislike holders that don't. They call them patent trolls.
Blawgletter has heard that juries don't share the anger. They view patents as property and see misuse of it as bad, even if the owners bought patents solely to extract licensing fees and, if necessary, to sue for infringement.
But the Federal Circuit showed us last week that judges may give non-practicing patent holders less of a break. In one case, the court upheld subject matter jurisdiction over a declaratory judgment action that contested potential infringement claims by a "patent holding company". Hewlett-Packard Co. v. Acceleron LLC, No. 09-1283, slip op. at 1 (Fed. Cir. Dec. 4, 2009). Hewlett-Packard sued Acceleron — a California company with Tyler, Texas, headquarters – in Delaware. The district court dismissed on the ground that Acceleron hadn't made enough of a threat to HP to justify a declaratory judgment suit.
In reversing, the Federal Circuit noted that a troll letter asking for a parlay about a patent "'may invoke a different reaction'" from a missive by a competitor:
[W]e observe that Acceleron is solely a licensing entity, and without enforcement it receives no benefits from its patents. This adds significance to the fact that Acceleron refused HP’s request for a mutual standstill . . . .
Id., slip op. at 7 (quoting district court opinion) & 8. The competitor, you see, might want to do a cross-license of patents. Or might have a fair gripe about losing business to the infringer. But not a patent troll.
The court also last week issued a writ of mandamus compelling the district court in East Texas to transfer a patent infringement case to North Carolina. In re Hoffman-LaRoche Inc., Misc. No. 911 (Fed. Cir. Dec. 2, 2009). In doing so, the panel applied the pro-mandamus decisions in In re Volkswagen of Am. Inc., 545 F.3d 304 (5th Cir. 2008) (en banc) and In re TS Tech USA Corp., 551 F.3d 1315 (Fed. Cir. 2008) (post here). The plaintiff didn't manufacture any relevant products in the Eastern District of Texas and, by sending 75,000 pages of documents to local counsel in East Texas, raised concern that it aimed "to manipulate the propriety of venue." Id., slip op. at 6. Naughty.
Some might infer that the Federal Circuit wants to cut the allure of the Eastern District of Texas as a place to file infringement cases. We wouldn't blame them for thinking that.