Dustin Howell 2017-12-20 05:40:40
The October 2017 term of the U.S. Supreme Court saw the arrival of Neil Gorsuch, who was confirmed by the Senate in April 2017. Justice Gorsuch authored only a handful of decisions in his first term, but it does appear that he is following in his predecessor’s textualist footsteps.1 And while they may lack the headline-grabbing appeal of the previous term, this term’s decisions did address matters that could affect your practices and your client’s interests. TC Heartland LLC v. Kraft Food Groups Brands LLC.2 This case substantially reined in a previously broad interpretation of the patent venue statute. In 1990, the U.S. Court of Appeals for the Federal Circuit read the patent-venue statute’s definition of “reside” to incorporate the generalvenue statute’s definition of the same term, thereby authorizing venue in any forum in which the defendant was subject to personal jurisdiction. The Supreme Court disagreed, holding that venue in a patent case is appropriate only where the defendant (1) is incorporated or (2) maintains a regular and established place of business. The fallout of this decision for the U.S. District Court for the Eastern District of Texas, a leading patent venue under the prior precedent, remains to be seen, though it will not likely affect cases against the largest defendants, many of which maintain permanent physical presences in the Eastern District. BNSF Railway Co. v. Tyrrell; 3 Bristol-Myers Squibb Co. v. Superior Court of California.4 Sticking with the civil procedure theme, this pair of cases continued the court’s trend of limiting the scope of personal jurisdiction. A defendant is subject to general personal jurisdiction in (1) the state in which it is incorporated; (2) the state of its principal place of business; and (3) a state in which defendant’s operations are “so substantial and of such a nature as to render the corporation at home in that State.”5 In BNSF, the court made clear that activity-based general personal jurisdiction, to the extent it can be found at all, may only be found in one state. And in Bristol-Myers, the court held that for purposes of specific jurisdiction, the extent of a defendant’s contacts with the state did not matter—what matters is the connection between the forum state and the facts giving rise to the case.6 Matal v. Tam.7 A dance-rock band composed of Asian-American members attempted to trademark the band’s name, The Slants. The U.S. Patent and Trademark Office denied the trademark on the basis that the band’s name was derogatory and thus violated the Lanham Act’s “disparagement clause.” The en banc Federal Circuit found the disparagement clause facially unconstitutional under the First Amendment, and the Supreme Court affirmed. The court concluded that trademarks are not government speech and that the disparagement clause could not survive either intermediate or strict scrutiny. We’ll see whether Congress addresses the court’s concerns. Ziglar v. Abbasi.8 A group of post-September 11 detainees sued various federal officials seeking damages for alleged constitutional violations (i.e., a “Bivens claim”). The district court and court of appeals allowed the bulk of the claims to go forward, but the Supreme Court reversed. The court concluded that Bivens, as an “implied cause of action,” was “‘disfavored’ judicial activity” and all but eliminated such claims except in the three particular scenarios in which it had previously been upheld: illegal searches/seizures, gender discrimination, and prisoner medical treatment, none of which was at issue in this case. Notes 1) Perry v. Merit Systems Protection Board, 137 S. Ct. 1975, 1994 (2017) (Gorsuch, J., dissenting) (“Respectfully, Congress already wrote a perfectly good law. I would follow it.”). 2) 137 S. Ct. 1514 (2017). 3) 137 S. Ct. 1549 (2017). 4) 137 S. Ct. 1773 (2017). 5) Daimler, 134 S. Ct. at 761 n.19. 6) Bristol-Myers, 137 S. Ct. at 1781. 7) 137 S. Ct. 1744 (2017). 8). 137 S. Ct. 1843 (2017). DUSTIN HOWELL is judge of the 459th District Court of Travis County and is certified in civil appellate law by the Texas Board of Legal Specialization. He previously worked as an assistant solicitor general in the Office of the Texas Attorney General and as a law clerk for former Texas Supreme Court Chief Justice Wallace B. Jefferson.
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