Posts Tagged: "Raytheon Co. v. Cray"

Denying TC Heartland Changed the Law on Venue Ignores Reality

On May 22, 2017, in TC Heartland LLC v. Kraft Foods Group Brands, LLC, 137 S.Ct. 1514 (2017), the Supreme Court held that patent venue is controlled exclusively by 28 U.S.C. § 1400(b), which restricts venue in patent cases to (1) where the Defendant resides, or (2) where the Defendant commits an act of infringement and has a regular and established place of business. The decision was immediately hailed by commentators as a significant break with past precedent… Despite the common perception of practitioners that the TC Heartland decision changed the law of venue in patent cases, the majority of district courts to address this issue have come to the opposite conclusion, finding that the decision merely reaffirmed existing law and could not excuse the failure to raise the defense earlier. The reasoning of these decisions is questionable, as is the refusal of these courts to recognize how dramatically TC Heartland changed the landscape for patent litigation.

What TC Heartland v. Kraft Food Group Brands Means for Patent Infringement Suits

Under the Federal Rules of Civil Procedure, a party waives its right to assert a defense of improper venue when it fails to raise the defense in a pleading or with other Rule 12 motions.  Importantly, however, that waiver only takes effect if the defense was “available” to the party at the time of filing either the pleading or motion.  Many circuits, including the Federal Circuit, interpret that requirement by recognizing an intervening law exception to the waiver of a defense, whereby an intervening change in law makes available a defense that had not previously been available.  Does the Supreme Court’s decision in TC Heartland constitute a change in the law?  Was the defense of improper venue unavailable until May 22, 2017?