South Carolina Business Law Blog

A bill pending in the South Carolina General Assembly that would make "bad faith assertions of patent infringement" an "unfair trade practice" under South Carolina law got a "jurisdictional boost" from a recent Opinion and Order issued by a Vermont Federal Court judge. Background The actions of patent-assertion entities (PAEs) that purportedly own patents and use litigation and the threat of litigation to enforce them are well-documented.  (For a brief description of the topic and some additional resources, click here ). PAEs are referred to by their detractors as "patent trolls." As a general proposition, patent law is exclusively federal in nature.  Congress has given the U.S. district courts original and exclusive jurisdiction, pursuant to 28 U.S. Section 1338 , over any civil action related to patents. As a result, litigation involving the validity, infringement, and enforcement of patents must take place in federal district court. V

As described by Greenberg Traurig , the Federal Courts Jurisdiction and Clarification Act of 2011 goes into effect on January 6, 2012, making several significant changes to federal law related to removal and venue. One important addition to 28 U.S.C. Section 1446 is a provision explaining how removal is accomplished when an action has multiple defendants.  The change resolves some inter-circuit variation on that point in favor of a rule allowing each defendant 30 days from its date of service to file a notice of removal, and then further allowing earlier-served defendants to join in or consent to any previous removal.  (For a 4th Circuit discussion of this topic, see Barbour v. International Union ).  Similarly, the law codifies the the "rule of unanimity" requiring all defendants to consent to removal. The law also makes significant changes to the "amount in controversy" provisions applicable to removal, and revises the general federal venue statute .