Motion to Dismiss for Improper Venue Granted; Cordis & Cray analyzed

With In Re Cray clarifying to some extent when venue is proper based on the alleged existence of a regular and established place of business, cases are starting to get thumbs up or thumbs down on pending venue motions at an accelerating pace, providing additional analysis on where in the Cordis/Cray continuum they fit.

Like this one.

Fed Ex – everywhere you need to be. Even the Eastern District of Texas.

“According to the FedEx Defendants’ advertising, they are “everywhere” you need them to be,” Judge Gilstrap wrote in this opinion.  “However, in their Motion to Dismiss Defendants argue that they are everywhere but this District, at least with respect to venue. The Court disagrees.”

The Court’s opinion in this case is useful on numerous pressing questions.  First, post-Micron what activity (or lack thereof) constitutes waiver of a Fourco improper venue defense; and second, what activity is sufficient to constitute a “regular and established place of business”, as analyzed below, including related questions of burden of proof, imputing contacts, venue discovery, and infringing acts.

It’s purely coincidental that today’s Fed Ex delivery to my office was the ribbon copy of my patent, but it seemed to be worth memorializing in this post about Fed Ex. But yeah, I’m an inventor now.

More Redshirts for 101 Motions

2017 has been a golden year for 101 motions in the Eastern District of Texas, with the reported grant rate – at least for the six month period from last fall through this spring – hovering at 75%, compared to 18% in Delaware.  It’s even triple the 25% grant rate during the same period in the Northern District of Texas, according to the below table from Bilksiblog.com.  Last week saw another negative data point on 101 motions for plaintiffs, as Judge Gilstrap granted a 101 motion on one patent – and on a claim that the PTAB had declined to institute review on – 45 days after the motion was filed, and stayed the case as to several others pending PTAB proceedings.