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.
Today’s post celebrates the Cowboys defense’s “lites out” performance yesterday against Kansas City (okay, aside from one play) with an examination of some interesting holdings with respect to an improper venue motion in an EDTX case involving a party named … Lites Out. (I live for this stuff – you know that).
One of the points I am making in the papers I am writing and panels I am speaking on this fall re: TC Heartland is that the issue of whether venue is improper as a result of Heartland/Cray is sometimes rendered moot by the resolution of a followup 1404 motion seeking transfer. We saw another example of this in the EDTX just this week.
Plaintiff and the defendant in this pending Delaware patent case Encoditech v. Virgin Pulse, 1:17cv1283 RGA jointly sought transfer to the Eastern District of Texas, Tyler Division. In the motion the parties state:
“The Parties believe and agree that the Eastern District of Texas is a more convenient forum for many recognized reasons, including: (1) Plaintiff is incorporated and located in the Eastern District of Texas, (2) Defendant’s witnesses for the purposes of this matter are closer to Texas than Delaware, and (3) the transferee district is currently less congested than this District.”
There’s a scene towards the end of 2010 where Dr. Floyd (Roy Scheider) looks out the window of the Leonov and sees that the colors of the planet Jupiter are … fading. He doesn’t know why, but he knows it’s really, really significant.
I was reminded of the look on Roy Scheider’s face last night when I began looking at two reports that are now out analyzing the patent case filings for the third quarter of 2017.
You won’t believe who edged out Delaware in new patent filings the last three weeks of September. And I think I know why.