By Scott A. McKeown
| February 9, 2017
Recalibration of Venue Could Change Face of Patent Litigation
As most are well aware, the patent venue statute, 28 U.S.C. § 1400(b), provides that patent infringement actions “may be brought in the judicial district where the defendant resides . . . .” The statute governing “[v]enue generally,” 28 U.S.C. § 1391, has long contained a subsection (c) that, where applicable, deems a corporate entity to reside in multiple judicial districts. In Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222 (1957), the Supreme Court held that §1400(b) is not to be supplemented by § 1391(c), and that as applied to corporate entities, the phrase “where the defendant resides” in § 1400(b) “mean[s] the state of incorporation only.” Id. at 226. The Court’s opinion concluded: “We hold that 28 U.S.C. §1400(b) is the sole and exclusive provision controlling venue in patent infringement actions, and that it is not to be supplemented by the provisions of 28 U.S.C. § 1391(c).” Id. at 229.
In the dispute before the High Court in TC Heartland v. LLC D/B/A Heartland Food Products Group V. Kraft Foods Group Brands LLC., the court will consider the argument that Federal Circuit precedent contradicts Fourco. The decision in TC Heartland could have a significant impact on patent litigation in this country given the disproportionate share of such cases now in Texas courts.
The petitioner briefing and amicus filings are now in, including the one I filed on behalf of Unified Patents.
In Support of Petitioner:
- Brief for Unified Patents in Support of Petitioner
- Brief for American Bankers Association, the Clearing House Payments Company L.L.C., Financial Services Roundtable and Consumer Bankers Association in Support of Petitioner
- Brief for the American Bar Association in Support of Petitioner
- Brief for the Electronic Frontier Foundation and Public Knowledge in Support of Petitioner
- Brief for Engine Advocacy in Support of Petitioner
- Brief for Intel Corporation and Dell Inc. in Support of Petitioner
- Brief for National Association of Realtors in Support of Petitioner
- Brief for the Software & Information Industry Association in Support of Petitioner
- Brief for The States Of Texas, Arizona, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Michigan, Nebraska, North Carolina, Ohio, South Carolina, Vermont, Virginia, And Wisconsin in Support of Petitioner
- Brief for Washington Legal Foundation in Support of Petitioner
In Support of Neither Party: