PublishedFebruary 28, 2019

No More Bites At The Apple In The Eastern District

Last week, it was widely reported that Apple plans to close its retail stores in the Eastern District of Texas in order to avoid facing patent lawsuits in the district.  Given that a single patent lawsuit can easily cost just as much as opening an Apple store (estimated at $8-10 million per store), even if Apple wins the lawsuit, it probably wasn’t a difficult financial decision for Apple: move the stores out of the district and avoid being subject to litigation in a notoriously patent-owner friendly jurisdiction.

But it’s one thing for Apple to close a couple stores in Dallas suburbs.  Apple has the financial resources to absorb that cost and the national presence to be able to forgo a store in the Eastern District.

What about a local store located in the Eastern District?  (As I covered last week, small business are already frequently targeted by non-practicing entities.)  Or a tech startup in Austin, located in the Western District of Texas—a venue already being touted as the next Eastern District?

They likely can’t afford to move.  And they usually can’t afford to defend themselves in an expensive patent lawsuit.

As long as the sorts of poor quality patents that NPEs thrive on using continue to be issued—a trend likely to increase, given Director Iancu’s attempts to loosen patent eligibility standards—these problems will continue to exist.

Businesses that can afford to leave patent-friendly jurisdictions will do so, and the communities they leave behind will lose.  Businesses that can’t afford to leave will face abusive litigation, and spend money on lawsuits and settlements that could have been invested in their companies.  The only winners are the NPEs exploiting patents that never should have been issued, suing companies in courts that design their rules to attract the NPEs, and the patent lawyers that get paid to fight those cases.[1.  Unsurprisingly, patent lawyer trade associations are currently working hand-in-hand with patent owners to try to make it easier to obtain broad, poor-quality patents.]

Josh Landau

Patent Counsel, CCIA

Joshua Landau is the Patent Counsel at the Computer & Communications Industry Association (CCIA), where he represents and advises the association regarding patent issues.  Mr. Landau joined CCIA from WilmerHale in 2017, where he represented clients in patent litigation, counseling, and prosecution, including trials in both district courts and before the PTAB.

Prior to his time at WilmerHale, Mr. Landau was a Legal Fellow on Senator Al Franken’s Judiciary staff, focusing on privacy and technology issues.  Mr. Landau received his J.D. from Georgetown University Law Center and his B.S.E.E. from the University of Michigan.  Before law school, he spent several years as an automotive engineer, during which time he co-invented technology leading to U.S. Patent No. 6,934,140.

Follow @PatentJosh on Twitter.

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