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Abstract

The Eastern District of Texas has recently become a rocket docket for patent litigation owing to the adoption of Judge T. John Ward’s local patent rules. However, the disproportional amount of patent cases filed in the Eastern District is evidence of plaintiffs forum shopping. Notwithstanding the benefit of forum shopping in creating, by default, patent law expertise in certain district courts, the existence of forum shopping illuminates the reality that patent law application is not uniformly applied throughout the district courts. This comment proposes a mandatory post-grant opposition proceeding occurring at the Board of Patent Appeals and Interferences of the Patent and Trademark Office when a defendant in a patent infringement case claims invalidity as an affirmative defense. The unification of patent law application would result because all district courts would defer to the Board’s finding under an administrative standard of review, after which, there would be no incentive to forum shop.

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