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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Touro Law 40th Anniversary

TLR BLOG

At the Touro Law Center, we are celebrating our 40th anniversary. The Touro Law Review BLOG is marking the occasion by republishing some of our alumni’s most ground-breaking Notes! Stay tuned for upcoming blog posts and podcasts in 2021.

Book Review: Errol Morris, “A Wilderness of Error”: Provocative but Unpersuasive

TLR BLOG

By Richard C. Cahn*

In light of the inauguration of President Joseph R. Biden, the Touro Law Review will soon publish a timely article, “Restoring Trust in the Judiciary: a Critical, High-Priority Project for the Biden Administration,” by Richard C. Cahn, who served as a member of the Touro Law Center Board of Governors and taught Professional Responsibility at Touro for many years. Mr. Cahn practiced law in Suffolk County for 60 years and served as President of the Suffolk County Bar Association. His book, “Making Law: A Memoir of Good Times,” was published last April, and includes a suspenseful chapter about how extraordinary legal proceedings forced a reluctant Department of Justice to charge Green Beret Captain Jeffrey MacDonald with the murder of his pregnant wife and two small daughters at Ft. Bragg, N.C. in 1970. In 2013, the Law Review published Mr. Cahn’s review of “A Wilderness of Error,” by Errol Morris, which attempted to raise doubts about MacDonald’s guilt, a book that Mr. Cahn described as “Provocative but Unpersuasive.” Last November, a five-part series with the same title was released by FX Networks, piecing together the evidence to argue that MacDonald was indeed guilty.

In light of both the recent publication of Mr. Cahn’s memoir and the revived interest by the public in this controversial case, the Touro Law Review Blog now republishes his 2013 review.

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A Life in the Law: An Interview with Drew Days

TLR BLOG

Rodger D. Citron*

Associate Dean for Research and Scholarship& Professor of Law

2014 © Posted with permission from the author.

Drew Days (photo credit: Yale Law School)

Drew S. Days, III, lived an extraordinary life in the law. Born in the segregated South, Days graduated from Yale Law School in 1966 and pursued a career as a civil rights lawyer. In 1977, he was appointed Assistant Attorney General for Civil Rights.  

After his stint in the administration of President Jimmy Carter, Days became a professor at Yale Law School. In 1993, Days returned to the federal government after President Bill Clinton appointed him Solicitor General of the United States.  He served in that position until 1996 then returned to Yale Law School as a professor.   

Days died earlier this month at the age of 79.  Regarding Days, former Yale Law School Dean and Sterling Professor of International Law Harold Hongju Koh said, “Drew was a gentle, courageous lawyer of principle, deeply committed to human and civil rights. He always spoke quietly and modestly, but with such moral authority.”  Koh added that Days “cared nothing for titles or recognition because his client was always the Constitution, not the political powers of the moment. His life will be remembered as a reminder of the moral urgency of putting principle first.” 

In 2011, Days visited Touro College, Jacob D. Fuchsberg Law Center to deliver the Howard A. Glickstein Civil Rights and Public Policy Lecture. As part of his visit, Professor Days was interviewed by Professor Rodger Citron about his life and career. An edited transcript of their conversation, published in the Touro Law Review in 2014, follows. 

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In General Public Use: An Unnecessary Test to Determine Whether the Use of Advanced Sensing Technology was a Fourth Amendment Search

TLR BLOG

By Mike Petridis

I.       Introduction

Kyllo v. United States[1] created a rule with an unnecessary test that allows a home, a person’s castle, to be searched without a warrant.  The Kyllo rule states: “[O]btaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area’ constitutes a search — at least where . . . the technology in question is not in general public use.”[2]  This rule was intended to be forward-looking and anticipate future technology.[3]  However, the “general public use” test is a loophole that can be used by law enforcement officers to conduct warrantless searches of homes in violation of Fourth Amendment principles.

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Who Gets the Dog in the Divorce? Examining a Standard for the New York Legislature to Adopt

TLR BLOG

By Jared Sanders

I.       Introduction

As a newly married couple, a husband surprises his wife on her birthday with an adorable puppy.  Fast-forward two years and the marriage is in disarray.  While the husband is out of town, the wife packs up her belongings, takes the dog, and leaves. Unable to repair the marriage, the wife files for divorce.  The question at trial becomes: who gets custody of the dog?  The husband argues that he should get custody because he bought the dog with his funds.  On the other hand, the wife argues that she should obtain custody because she primarily cared for the dog, and they formed a close bond.[1]  How should the court decide which spouse receives custody of their beloved dog?  What standard should the court apply?

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Criminal Usury and Its Impact on New York Business Transactions

TLR BLOG

By Christopher Basile

I.       Introduction

Choice-of-law provisions may bypass state statutes implemented to protect the general public and they may also reduce the effectiveness of the state’s legislative intent.  A choice-of-law clause is a provision in a contract where the parties choose a state’s law to govern any conflicts or disputes that may arise between the parties.[1]  Companies may implement choice-of-law clauses in their contracts to avoid statutes or regulations of various states.[2]  Many companies use choice-of-law provisions to intentionally avoid New York laws and regulations.  Companies attempt to avoid a series of criminal usury statutes in New York.  Usury is defined as an illegal rate of interest that may be charged on a financial instrument.[3]  In conclusion, many companies intentionally try to avoid New York’s criminal usury statutes through the use of choice-of-law provisions.

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