Will the District Court of D.C. Get Busier?
A company that is threatened by a potential patent infringement lawsuit can file a declaratory judgment action in a federal district court that has jurisdiction. Generally, the threatened company can seek to have the action heard by a court that may be more friendly towards the company than the patent holder. For a court to hear the action, the patent holder must have some minimal contacts in that court's area of jurisdiction.
Many foreign entities will generally not have the minimal contacts needed. For example, the Federal Circuit Court of Appeals decided in Autogenomics v. Oxford Gene Technology that the foreign patent holder did not have sufficient contacts in California and so the threatened company must file its action in the Federal District Court for the District of Columbia.
The USPTO publishes a report that identifies where the first-named inventor of each patent resides. When the inventor resides outside the United States, it is a reasonable indicator that the patent is owned by a foreign entity. In 2008, 50.3% of the patents fell in this category whereas in 1977, only 35.5% of patents did. This makes sense because an increasing amount of R&D and manufacturing funds are spent overseas. (When I completed my MBA in the early '90s, we were trying to make sense of the service-based economy.)
If the trend in patent ownership continues, the District Court of DC court may see an increasing number of declaratory judgment actions in patent cases.
