This is an archived article that was published on sltrib.com in 2017, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
The U.S. Supreme Court recently issued an opinion in TC Heartland LLC v. Kraft Foods Group that will do more to create jobs and boost the tech economy than just about any other decision in recent memory. With its ruling, the court ended the widespread practice of patent trolls filing abusive patent lawsuits in their favored location of the United States District Court, Eastern District of Texas.
Until the Supreme Court's ruling, patent trolls could haul a company merely selling products in Eastern Texas into court there. In TC Heartland, the court ruled a patent troll may only sue a company where that defendant company has its offices or some other significant connection to the area — not merely where it sells products. Thus ends the "forum shopping" of patent trolls.
A patent troll lawsuit is one without merit, alleging patent infringement claims that didn't really happen. Trolls aim to extort settlement money from defendant companies who face millions of dollars in defense expenses if they can't get the meritless suit dismissed early.
In Eastern Texas, few troll cases were ever dismissed. And defendants often paid up to just avoid the risk of litigating there.
Annually, an estimated $30 billion was wasted on these frivolous suits, most targeting the tech sector and most brought in Eastern Texas. For example, over the years Overstock.com, the company where I've worked for 15 years, has spent tens of millions defending numerous meritless and frivolous patent trolls suits, many filed in Eastern Texas. That money represents a lot of lost jobs and opportunity going down the gullets of abusive patent trolls.
Most of these suits were forum shopped to Eastern Texas because of favorable jury and judicial treatment. Over the years, this cabal turned into a type of community-supported "judicial industry," driving significant parts of the economy of the small towns along the Texas-Louisiana border. Locals, especially local lawyers, all knew it and directly or indirectly benefited.
The U.S. Congress also knew about these abuses for well over a decade. Buckets of ink have been spilled on this subject. There have been press articles, TV documentaries, radio programs and commentary and stacks of academic studies and other scholarly work, all dredging up the $30 billion dollar sludge of the patent troll industry for anyone to see. And all of it pointing to the necessity of a legislate fix.
After many hearings, much political speak, congressional pow-wows, knitted brows, and so forth, Congress enacted no legislation.
That Congress did not act, or was incapable of acting in the face of so great a cause, is not my primary focus today.
Instead I want to underscore how vitally important a healthy independent judiciary branch is to the country—to its economy and its people. And lawyers, though much maligned in their profession (sometimes rightfully), should be proud and work to uphold that branch in which they serve. There is nothing like it in all the world.
After all, the same arguments were made to each the legislative and judicial branch, the same facts argued, the same evils underscored, and the same urgent call to action made. And yet only one branch, the one more closely bound to the essence of what lawyers do, acted in the way any rational and decent body should act in dealing with a serious problem. And it acted decisively and without a lot of fanfare or rhubarb.
The importance of the judiciary, the legal profession and the principal of judicial review of lower courts is a priceless constitutional legacy from the founders. And the fact that the founders framed the judiciary to be independent from winds of influence that might at times bend over backwards the other government branches is something for which we should all be grateful.
All Americans have good cause today and ever, to join voices in one chorus, repeating the prayerful injunction that opens every session of the U.S. Supreme Court, when the clerk rises and says loud enough for all to hear: "God save the United States and this Honorable Court!"
Jonathan Johnson is a former judicial clerk at the Utah Supreme Court, a member of the Overstock.com board of directors, and a former candidate for governor in Utah.