Following In re Micron, district courts are addressing the issue of what level of delay in raising a Fourco venue defense following TC Heartland constitues a waiver. This recent opinion sets forth the relevant standards, and finds that defendants that waited four and five months, respectively, waived the defense of improper venue.
A little over a month ago I posted on Judge Payne’s decision to grant a motion to dismiss for improper venue based on his decision not to consider the locations of a corporate subsidiary in the district for purposes of determining venue under Section 1400. See “A Difficult Standard to Meet” – Imputing Places of Business Among Corporations.” I thought readers might be interested in Judge Schroeder’s order resolving the objections to that ruling, which has some useful tips on how to (or not) to brief objections to a magistrate judge’s rulings.
(Ed. note: the scene of Dr. Frankenstein’s laboratory refers metaphorically to the concept of transferring something – here one corporation’s locations – from one entity to another. It does not refer to methods which may or may not be used for the training or usage of law clerks. I express no opinion on its accuracy or metaphorical appropriateness for that use.)
You probably won’t see this fact situation come up very often. Defendant’s corporate rep gets on stand at trial and tells jury of its offices and facilities in the district and that “we’re moving a distribution center across to Marshall.” Jury finds for defendant and in a follow-in case defendant moves post-TC Heartland to dismiss for improper venue claiming it does not have a “regular and established place of business in the Eastern District of Texas.
One of the points I’ve been making in my recent papers and talks on patent venue is that the first place the issue can get before the court is at the venue discovery stage when the parties dispute which information is relevant to the analysis. A recent case discusses this, and draws some lines on what is and isn’t discoverable on the issue of venue post In re Cray.
Yes, there are still 1404 motions seeking transfer based on convenience, and this one in a case brought by Oyster Optics presents a current recitation of the relevant caselaw before denying the requested relief.
Interesting article by former D.Delaware judge Sue Robinson in Law360 today – Does The Path To The Right Venue Have To Be Narrow? Her subject, and conclusion, is this:
“The mantra seen in more than one venue decision — that venue statutes should not be given a liberal construction — is based on language from cases resolving discrete legal issues not necessarily related to § 1400(b), or policy considerations and not statutory interpretation. Consider as well the context of this discussion — patent litigation, where the property at issue is constitutionally protected, the subject matter involves cutting-edge technology, and the disputes generally are national in scope. To transform the Olberding dicta into a general principle of statutory construction is, I propose, not mandated by Supreme Court precedent and, at least arguably, not consistent with a just determination of a proper venue as selected by an injured patent owner.”
It’s an interesting analysis of some of the cases discussed by the courts in TC Heartland and In re Cray.
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.
“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.
Finally wrapped up my paper on TC Heartland this morning for next week’s seminar – will have it posted with the associated slides after I prepare the slides tomorrow afternoon (isn’t that what Saturdays are for?) One of the last cases I added was one of the most interesting, since it involved a court’s finding that a third party’s business location qualified as a regular and established place of the defendant, which is shaping up to be the Holy Grail of venue findings.
I am in mad scientist mode this afternoon, frantically combing my office for cases, articles, blog posts and other factoids for my paper The Effect of TC Heartland on Patent Venue for next week’s ILT seminar in Plano, and noticed this little Halloween gem from an EDTX judge on the potentially crucial issue of when you can impute a “regular and established place of business” from one corporation to another. You know, sort of like … well, you get the idea.