Bonum Certa Men Certa

Courts Are Losing Patience for Gilstrap's Unbridled Support of Patent Trolls

He's no better than Randall Rader, a facilitator of trolls (discharged with dishonor, so to speak)

Randall R. Rader
Photo from Reuters



Summary: The man whose court has become a trolling 'factory' is being refuted (but not reprimanded) by the CAFC, which certainly can see that something is amiss and serves to discredit the system as a whole

THE media does not usually name judges (personifying cases). But Gilstrap is a special case; he himself has become the story due to outrageous rulings on patents (and more recently copyrights, too). The judge whom prominent politicians have dubbed "reprehensible" keeps ignoring the Supreme Court [1, 2]. He has single-handedly decided that the litigation 'industry' in his town is more important than the law itself.



What will people think of the legal system, having read about the tales of Gilstrap? It's almost as though he is proudly biased; he boasts about it and openly invites patent trolls to his court (for favourable treatment). If he continues to make complete and utter mockery of the law, how long will it take before higher courts intervene at a more personal level/capacity?

Well, towards the end of this week the patent microcosm's media took note of one such development; "Federal Circuit rejects Gilstrap’s test for patent venue," said the headline. Here is the opening paragraph (much of the rest is behind a paywall):



The Federal Circuit has reversed an Eastern District of Texas refusal to transfer the Cray case, and rejected Judge Gilstrap’s test for determining patent venue. This includes the appeals court stating there must be a physical, geographical location in the district from which the business of the defendant is carried out



Almost simultaneously the other site of the patent microcosm reaffirmed the view that Gilstrap is obviously rigging the system:

As a general matter, Judge Gilstrap’s interpretation appears fairly broad, and on writ of mandamus, the Federal Circuit has rejected Gisltrap’s analysis and directed that he transfer the case to a more appropriate venue.


Why is he tolerated after all he has done? The era of patent trolls in the US may be ending, but Trump's nomination (USPTO Director) gives reasons for concern and judges like Gilstrap somehow maintain their job, in the face of growing controversy and outrage. Here is another new article to that effect (about patent venue):

Judge Leonard Stark of the District of Delaware has issues two rulings on motions to transfer that provide guidance for Hatch-Waxman and other patent litigation. This included ruling “regular and established place of business” requires a physical place of business in the district



The EFF has already commented on this. Yesterday Vera Ranieri wrote about Gilstrap , noting that this latest appeal/reversal is good news for those of us who work hard to stop software patents and patent trolls (overlapping issues). To quote some of the relevant parts:

In a closely watched case, the Court of Appeals for the Federal Circuit has issued an order that should see many more patent cases leaving the Eastern District of Texas. The order in In re Cray, together with the Supreme Court’s recent decision in TC Heartland v. Kraft Foods, should make it much more difficult for patent owners to pick and choose among various courts in the country. In particular, it should drastically limit the ability of patent trolls to file in their preferred venue: the Eastern District of Texas.

“Venue” is a legal doctrine that relates to where cases can be heard. Prior to 1990, the Supreme Court had long held that in patent cases, the statute found at 28 U.S.C. €§ 1400 controlled where a patent case could be filed. This statute says that venue in patent cases is proper either (1) where the defendant “resides” or (2) where the defendant has “committed acts of infringement and has a regular and established place of business.” However, in 1990 in a case called VE Holding, the Federal Circuit held that a small technical amendment to another statute—28 U.S.C. €§ 1391—abrogated this long line of cases. VE Holding, together with another case called Beverly Hills Fan, essentially meant that companies that sold products nationwide could be hailed into any court in the country on charges of patent infringement, regardless of how tenuous the connection to that forum.

[...]

One decision, Raytheon Co. v. Cray, Inc., written by Judge Gilstrap (a judge who at one point had ~25% of all patent cases in the entire country before him) appeared to take a broad view of what it meant to have a “regular and established place of business.” Judge Gilstrap held that “a fixed physical location in the district is not a prerequisite to proper venue.” More concerningly, Judge Gilstrap announced his own four-factor “test” that created greater possibilities that venue would be proper in the Eastern District.

The Federal Circuit has now rejected both that test and Judge Gilstrap’s finding that a physical location in the district is not necessary. The Federal Circuit specifically noted that the venue statute “cannot be read to refer merely to a virtual space or to electronic communications from one person to another.” Importantly, the Federal Circuit also held that it is not enough that an employee may live in the district. What is important is whether the alleged infringer has itself (as opposed to the employee) established a place of business in the district. The Federal Circuit did stress, however, that every case should be judged on its own facts. Based on the facts of Cray’s relationship to the district, the Federal Circuit ordered Judge Gilstrap to transfer the case out of the Eastern District.


What will it take for Gilstrap to accept that he is wrong to put the financial interests of litigators ahead of the law itself? What will compel those in charge to consider his dismissal (for making his mission as a judge akin to that of the disgraced CAFC judge, Randall Rader)? How are people expected to respect the patent system when rules are not being honoured even by these judges?

Update: Just an hour before publishing this article the CCIA's Josh Landau wrote about this too. He mentioned the judge:



Yesterday afternoon, the Federal Circuit overturned the Eastern District of Texas’s test for venue. Even after TC Heartland, patent trolls were trying to keep defendants in the Eastern District of Texas. And in the first order issued by Judge Gilstrap, in a case called Raytheon v. Cray, it seemed like he was going to cooperate.

In Cray’s request to overturn Judge Gilstrap’s decision, the Federal Circuit ruled that Judge Gilstrap had abused his discretion in refusing to transfer the lawsuit out of the Eastern District. The Federal Circuit then established three key factors in analyzing the “regular and established place of business.” Their factors are based on the text of the patent venue statute, 28 U.S.C. €§ 1400, and the history of its development, a history that establishes that it was intended to restrict the availability of venue in patent cases.

The upshot? Having a website generally accessible in a district or a telecommuting employee isn’t enough to create venue. And that stems directly from the text of the statute – a district where “the defendant has … a regular and established place of business”.

Recent Techrights' Posts

Further Media Cut-downs
media reporting about the media being cut
Gemini Links 09/09/2025: Moon Eclipse and ROOPHLOCH Reports
Links for the day
Official SUSE Blog Still Uses LLM Slop (Bots) to Make Fake Articles (Marketing)
The company is all about sound bites
Companies Realise That Slop Doesn't Work as Advertised, Accordingly Dump It
"Hype dims as a country-wide survey of US corporations shows a sudden drop-off in AI use among firms with more than 250 employees."
Microsoft-Funded Lawsuits Against Critics of UEFI 'Secure Boot'
Remember that no company (or law firm) ever survives collaborations with Microsoft
It's Only the Second Week of September and Already Two Waves of Layoffs at Microsoft, Slopfarms and Microsoft-Funded Sites Spin It as "AI Investments" Rather Than Commercial Failure
A very large third one expected next week
 
statCounter Sees GNU/Linux Exceeding 10% in Bulgaria This Month
What can Microsoft still do to stop GNU/Linux?
Dark Patterns
Microsoft saying "security" is like a Convicted Felon in the White House saying "law and order".
It's Almost Fall (Autumn)
To "Facebook prison" you are bound
Bruce Schneier About "Secure Boot"
Bruce Schneier isn't a fan of "Secure Boot"
Links 09/09/2025: Microsoft Mass Layoffs Again and "RTO" (Timed Like It Serves as a Distraction From the Mass Layoffs)
Links for the day
RMS Told Microsoft to Stop 'Secure Boot' (He Even Went There to Say That), But They Didn't Listen
Dr. Stallman (RMS) assumed that speaking to sociopaths would work
What Richard Stallman Told Me About 'Secure' Boot in 2012
"if the user doesn't control the keys, then it's a kind of shackle"
Those Who Helped Microsoft Weaponise "Secure Boot" Against GNU/Linux and BSDs Are Fleeing
Microsofters doing what they do best: they evade accountability
Simple is Better, Simplicity is Power
That is "the advantage of having commodity GNU/Linux systems," an associate notes
Much Ado About Nonsense
Microsoft Lunduke is still all dramatisation and sensationalism
Current Events in France
It needs to dump Microsoft and other GAFAM (US) giants, move to Free software
Links 09/09/2025: US-Korea Tensions and Meta Whistleblowers
Links for the day
Links 09/09/2025: “Torrents of Hate” and Political Crisis in France
Links for the day
Gemini Links 09/09/2025: "Dedigitizing" and Forgejo on FreeBSD
Links for the day
Google News (Not Just Google Search) Lets Itself by Gamed by One Slopfarm - to the Point Almost Half of "Linux" News is Bot-Produced Plagiarism (LLM Slop With Slop Images)
That says a lot about what Google thinks of quality, even in Google News
Bill Gates-Funded Media Inadvertently Refutes the Microsoft Lie That in 2025 Microsoft Had Just Two Waves of Layoffs
There were about 12 rounds of layoffs so far in 2025
From theregister.co.uk to theregister.com (US) to The Register MS (Run by Microsoft Operatives) and theregister.ai
The best way to break this racket (or cycle of hype and harm) is to break the chains of funding
Open Source Initiative (OSI) Culture of Censorship Necessitates More Speech
The OSI bans dissent or people who merely point out that the OSI is abusive
How to Reach Us Discreetly (Other Than Encrypted E-mail)
We're still managing to maintain a 100% source protection record. We soon turn 19.
LLMs Are Vastly Worse Than a Waste of Energy and the Externalities Are Huge
Worse than just higher power bills for everybody
LLMs Versus Search (Not Replacing Search But Engaging in DDoS Attacks Against Web Sites That Permit Searching)
The state of the Web isn't just bad; it's utterly terrible
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, September 08, 2025
IRC logs for Monday, September 08, 2025
The UEFI 9/11 - Part IX - Shunning Old Computers (in 2023 the Certificate Was Updated/Overridden, Underlying Aim May Be Herding/Forcing People to Get TPM and Other 'Novel' Restrictions)
the "upgrade treadmill"
Rumour: Second Wave of Microsoft Mass Layoffs in September to Commence Third Week of September
That basically answers questions like, "Any specific date or time of the month?"
If Your Machine Still Has "Secure Boot" Enabled, Then Microsoft Has a de Facto Kill Switch (Even If Your Machine Doesn't Have Windows and Never Had Windows)
It is not incorrect to call UEFI 'secure boot' a "kill switch"
Gemini Links 08/09/2025: Reality, ROOPHLOCH 2025, and Writing Another Gemini Client
Links for the day
Updating Firmware is Not the Solution But Only Additional Risk, Disable "Secure Boot" Today
firmware blobs are buggy, secret, impossible to audit, and barely tested
Microsoft Tim's DevClass (Part of The Register MS/Situation Publishing) is Full of Slop
Looking at many sites that are full of slop images is becoming an eye sore and hallmark of text too likely generated by LLMs or 'assisted' (tainted) by them
Microsoft Trying to Fake Demand for Slop. At What Cost?
That's a giant demotion and broken promises
Reddit is Corporate Propaganda
To make matters worse, Reddit ousted many original moderators
Jeff Geerling Shocked to Discover Many Metrics in YouTube Are Fake (His Audience Turns Out to be Much Smaller)
Maybe self-host all videos, don't rely on Google's "FOMO" cheating (addiction based on false assumptions)
Sunlight is the Best Disinfectant and Kryptonite/Garlic to Vampires
Transparency (sometimes described by words like "Sunlight" or "Truth") is paramount
The Register MS Uses Slop in Articles About Slop
we are fairly certain it's slop or CG based on other people's work
Visiting a Web Page or a Public URL Should be Safe, Predictable, and Benign
It's probably too late to "fix" the Web
The Register MS (Situation Publishing) is Paid to Spread Mindless Hype for the "Hey Hi" Ponzi Scheme and That's a Serious Problem
"Sponsored by Zoom."
Links 08/09/2025: Burger King Cracked, Cox v. Sony Analysed
Links for the day
Gemini Links 08/09/2025: Socialist Computer Museum and GAFAM/ByteDance/TikTok-Dominated Net
Links for the day
Links 08/09/2025: Tim Crook Disappoints Apple Faithfuls and Zuckerberg Lies (Financial Fraud) for Cheeto King
Links for the day
EPO Workers Point Out that the EPO is Destroying the Planet Under the Guise of "Hey Hi" (It Also Grants Many Invalid Patents Illegally
On 12 March and 16 June 2025, staff representation met with the administration in the Local Occupational Health, Safety and Ergonomics Committee (LOHSEC) in Munich
Turn Off Microsoft's Restricted Boot ("Secure Boot")
We're still running a series on this issue
Social Control Media Sites Have Become Bot Farms (Not Limited to LLMs and Automation)
linkedin.com was nothing but trouble and losses for Microsoft
Deep in Debt With the Magnitude of Losses Quickly Growing, Microsoft "Open" "Hey Hi" Now Uses Broadcom for Vapourware, Pretending It'll Do OK Next Year
At some stage it'll collapse
You Can Tell Microsoft is in Trouble When Its Own Fans and Staff Blast it
"Microsoft sinks billions into chasing artificial intelligence fads to hype up its share price."
Multiple Undersea Cable Cuts and We're Still OK
Microsoft customers experience problems
Lawyers Who Think They Are Online Assassins Don't Deserve a Licence to Operate
they've become a laughing stock in their "sector"
Microsoft Windows Fell to 3.9% "Market Share" in Bahamas
Based on statCounter
How the European Union (EU) Fell Out of Love With Free/Libre Software
Lots of bribery
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, September 07, 2025
IRC logs for Sunday, September 07, 2025
Gemini Links 07/09/2025: Scanner, Slop, and Chadobear
Links for the day
The UEFI 9/11 is 3 Days Away
Nobody denies that bad things will happen
Google Versus Journalism
Google played a big role in the demise of news sites
Gemini Links 07/09/2025: Advertising, Decentralized Archival, and Outsourcing to Bezos
Links for the day
Certificate Authority Let's Encrypt Has Almost Gone Down to Zero, Nearly Totally Extinct in Geminispace, the Few Capsules Still Using It Are Spam/Dead/Stagnant
This represents another decrease for Let's Encrypt; the last decrease was last week
Not Much Left in News Cycles
To be very clear, this does not describe "Linux" anything; it's true in just about every facet of news, except the paid-for fake "journalism" about "hey hi" (sites getting paid explicitly to maintain or rekindle hype)
Trying to Silence Techrights Was a Huge Mistake
Peter Thiel attacked a publisher for asserting, correctly, that he was gay. Now everyone knows it.
Throwing Away "Old" Computers (Mozilla and Other Climate Deniers)
Mozilla is not leftist
The UEFI 9/11 - Part VIII - Denial of Service and Selling Us WSL (Windows) Instead of "Risky" (Prone by Breakage by Microsoft) GNU/Linux
Restricted Boot (so-called 'SecureBoot') does not improve security. It is nothing but trouble. It's meant to trouble non-Windows users. In dual-boot setups, SecureBoot is a recipe for disaster because Microsoft keeps erasing or tampering with the boot sector, to paraphrase an associate
Slop is Extremely Rare in Geminispace, Slop Images Are Unheard Of (Despite Images Being Supported)
As long as Geminispace grows in terms of domains it's safe to predict the protocol will still be used in 2029 and hence Geminispace will turn 10
Links 07/09/2025: Robodebt Class Action, Fines, and Copyright Settlement
Links for the day
Links 07/09/2025: Yle Impersonated in Social Control Media, Boat-Attacking Orcas, Midjourney Sued Again
Links for the day
Slopwatch: LinuxSecurity, Linux Journal, and the Serial Slopper
Google won't tackle the issue because Google participates not only in relaying slop but also in generating lots of it
Links 07/09/2025: Google Fines in EU and "Your Internet Access Is at Risk"
Links for the day
Gemini Links 07/09/2025: Little Brother and Corporate Theatre
Links for the day
Links 07/09/2025: More Harms of Slop and Anthropic's Nightmare Scenario (Huge Legal Liabilities for Slop)
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, September 06, 2025
IRC logs for Saturday, September 06, 2025