Patent

Protecting the Benefit of a Seller’s Bargain in Real Estate Contracts

TLR BLOG

By Matthew Ingber*

Originally published in Volume 30 | Number 3 in 2014 in the Touro Law Review

*Matthew is an associate attorney at Brown Altman & DiLeo, LLP and handles all matters involving land use and zoning law, municipal law, commercial and residential transactional real estate, and commercial litigation.  Matthew has obtained municipal approvals throughout Long Island for national restaurant chains, gasoline station retailers, and alternative energy companies.  Matthew graduated summa cum laude from Touro Law Center in 2015.  He was a member of the Touro Law Review and served as an Issue Editor.

I. INTRODUCTION

Courts measure damages for breach of a real estate contract based on the difference between the contract price and the fair market value of the property at the time of the breach,[1] which seeks to protect the injured party’s expectation interest.[2]  This measure usually provides an injured seller with an adequate remedy in the event of a buyer’s breach[3] but “[i]n some cases, the actual loss suffered as a result of a breach exceeds the amount yielded by that formula.”[4]  In American Mechanical v. Union Machine Co.,[5] the buyer contracted to purchase the vendor’s real estate for $100,000.[6]  The property was then resold for $55,000, and the seller sought to recover the difference between the original contract and resale price.[7]  Although the court recognized that the general measure of damages sometimes inadequately protects the benefit of the injured seller’s bargain,[8] the court failed to formulate an alternative measure to address the problem.

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Solving the Riddle! Bridging the Gap in the Federal Circuit’s Definition of “Regular and Established Place of Business” to Prevent Patent Trolls from Forum Shopping

TLR BLOG

By Michael A. Morales*

Originally published in Volume 43 | Number 2 (Article 14) in the Touro Law Review, in 2018.

*Michael is the former Editor-In-Chief of the Touro Law Review. He graduated Summa Cum Laude as Salutatorian of the Part-Time Division in 2019. He is currently working as an associate attorney at Ropes & Gray, LLP, where he focuses on intellectual property law.

I. INTRODUCTION

Although patent trolls have manipulated the United States patent system, one way to discourage and prevent them from exploiting the weaknesses in the system, and ultimately harming innovation, is through the combination of reasoned policy analysis and patent venue reform.6 For many years, the United States District Court for the Eastern District of Texas has provided a haven for patent trolls to bring patent infringement lawsuits because it tends to favor patent- owners.7 Therefore, patent trolls typically file patent infringement lawsuits in the Eastern District of Texas instead of other more convenient districts to increase their likelihood of a favorable outcome.8 Such forum shopping, which is part of the patent troll business model, provides a litigation advantage to a party in a patent infringement lawsuit.9 This Note will argue that courts should apply venue law in a manner that limits a litigant’s ability to forum shop for a favorable forum, such as the Eastern District of Texas, in patent infringement lawsuits. This Note will propose several factors that courts should use to determine whether a party has filed a patent infringement lawsuit in a proper venue according to the patent venue statute.10 It will explain why each factor limits a patent troll’s ability to forum shop, thereby fostering innovation and supporting Congress’s goal for implementing the patent system.11

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