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The New Patent Venue Regime
Venue in patent cases lies “in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.” 28 U.S.C. §1400(b). Since 1990, the Federal Circuit interpreted the term “resides” coextensively with the general venue statute such that patent venue lay where the defendant was subject to personal jurisdiction. See, VE Holding Corp. v Johnson Gas Appliance Co., 917 F2d 1574, 1578 (1990). Minimum contacts required for personal jurisdiction are substantially less than a “regular and established” place of business. So, the court's broad definition of “resides” essentially made §1400(b)'s alternative phrase unnecessary. But this year, the Supreme Court greatly narrowed that definition. See, TC Heartland v. Kraft Foods Group Brands, 137 S. Ct. 1514, 1517 (2017). The Federal Circuit, in turn, interpreted the newly-relevant alternative phrase. In re Cray, ___ F.3d ___, 2017 WL 4201535 at 4 (Fed. Cir. 2017). After two decades of relaxed patent venue rules, these decisions work a seismic shift in patent litigation.
Now, patent venue lies either: 1) where the defendant “resides”; or 2) where a) an act of infringement occurs, and b) the defendant has a “regular and established place of business.” A domestic corporation resides “only in its State of incorporation.” TC Heartland, 137 S. Ct. at 1517. The Federal Circuit identified three requirements for a “regular and established place of business: “(i) “physical place” in the district; (ii) which is “regular and established;” (iii) and which is “of the defendant.” Cray, 2017 WL 4201353 at 4.
The Cray Decision
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