Posts Tagged: "VE Holding Corp v. Johnson Gas Appliance"

TC Heartland Update: Decision Changed the Law on Venue

The U.S. Court of Appeals for the Federal Circuit recently issued its decision in In re Micron Tech., Inc., Case No. 2017-138 (Fed. Cir. Nov. 15, 2017), and resolved a question that had divided district courts and commentators throughout the United States following the U.S. Supreme Court’s ruling in TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct. 1514 (2017):  Did TC Heartland change the law of venue in patent cases such that a party’s failure to raise a venue defense in its initial responsive pleading could be excused?  The Federal Circuit held: “We conclude that TC Heartland changed the controlling law in the relevant sense: at the time of the initial motion to dismiss, before the Court decided TC Heartland, the venue defense now raised by Micron (and others) based on TC Heartland’s interpretation of the venue statute was not “available,” thus making the waiver rule . . . inapplicable.”

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?

TC Heartland: An Alternate Opinion – Not As Bad As It Seems

We believe that the fallout from the Court’s ruling last week will be less dire for patent owners than most commentators predict. The conventional wisdom is that TC Heartland will cause a mass exodus of patent filings from the Eastern District of Texas and other supposedly plaintiff-friendly venues to Delaware, the Northern District of California and, to a lesser extent, the other states. The assumption underlying this view is that all those plaintiffs will be forced to file in the state where the defendant is incorporated. Yet even post-TC Heartland, patent owners have options and can continue to be strategic about how and where they proceed.

In re TC Heartland: Asking the Federal Circuit to ‘Fix’ Patent Venue Law

Twenty-five years ago, the Federal Circuit decided a case that transformed where (and how) patent infringement cases can be litigated.[1] By expanding the scope of where a corporate defendant “resides” for venue purposes, the court in VE Holding Corp. v. Johnson Gas Appliance greatly increased the number of states and courts in which many corporations can be sued for infringement. This decision has contributed to the development of forum-shopping and related litigation issues over the past several years. One company, TC Heartland, LLC, is now urging the Federal Circuit to overturn that precedent and restore more stringent venue restrictions through a writ of mandamus, and dozens of others are joining the debate.