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Federal Circuit: TC Heartland changed the law; pre-decision waiver of venue challenges are nullified

patentlyo.com/patent/2017/11/heartland-challenges-nullified.html

In its 2017 TC Heartland decision, the Supreme Court changed course -- holding that for business-defendants in patent cases venue is only proper in districts where (1) the defendant is incorporated or (2) the defendant infringes the patent and has a regular and established place of business.   Except for nationwide retailers, this significantly limits the locations where venue is proper.

Looking-Back: TC Heartland; Waiver; and a Change in the Law

patentlyo.com/patent/2017/10/looking-heartland-waiver.html

denied Yahoo's motion to dismiss, holding (on oral decision): (1) that Yahoo had waived its right to challenge venue; and (2) that TC Heartland did not change the law (since Fourco has been the controlling law all along).  Note here, the second point - change in law - is important because it can excuse prior waiver.  Under Second Circuit law: “[A] party cannot be deemed to have waived objections or defenses which were not known to be available at the time they could first have been made.” Holzsager v.

In Defense of the Federal Circuit: TC Heartland and Patent Venue

patentlyo.com/patent/2017/02/federal-circuit-heartland.html

Against this background, TC Heartland doesn’t seem like a case the Supreme Court would hear simply to affirm.

Guest Post: TC Heartland and Statutory Interpretation

patentlyo.com/patent/2016/12/heartland-statutory-interpretation.html

After the certiorari grant in TC Heartland, Dennis solicited a blog post from anyone who thought the case was not a slam dunk.

TC Heartland: Statutory Interpretation, Fairness, and E.D.Texas

patentlyo.com/patent/2017/02/heartland-statutory-interpretation-fairness.html

The topside briefs have been filed in TC Heartland with strong support for the petitioner who is looking to dismantle the notion of nationwide venue against accused patent infringers.

TC Heartland Law Professor Amicus Brief

patentlyo.com/patent/2016/10/heartland-professor-amicus.html

In TC Heartland, the accused infringer has asked the Supreme Court to reset the law of venue and give effect to the statutory statement that infringement actions be brought either (1) "in the judicial district where the defendant resides" or (2)" where the defendant has committed acts of infringement and has a regular and established place of business."  28 U.S.C.

Raising Venue Post TC Heartland

patentlyo.com/hricik/2017/06/raising-venue-heartland.html

There's going to be a lot of litigation over whether a defendant who failed to object to venue pre-TC Heartland can raise it now.

TC Heartland: Next Step in Limiting Patent Venue and Jurisdiction

patentlyo.com/patent/2016/01/heartland-limiting-jurisdiction.html

In the pending mandamus action of TC Heartland, the merits panel has taken one step forward by ordering oral arguments - set for March 11, 2016.

Federal Circuit Continues Broad Venue Allowance in Patent Cases

patentlyo.com/patent/2016/04/circuit-continues-allowance.html

Heartland alleged that it is not registered to do business in Delaware, has no local presence in Delaware, has not entered into any supply contracts in Delaware or called on any accounts there to solicit sales.

Guest Post: Recalibrating Patent Venue

patentlyo.com/patent/2016/10/recalibrating-patent-venue.html

Since then, Senator Flake (R-Az) introduced the VENUE Act of 2016, and last month, petitioners, led by a group including James Dabney and John Duffy, filed a petition for writ of certiori in the TC Heartland case in the Supreme Court.

And… a court says “You could’ve done what TC Heartland’s Defendant did”

patentlyo.com/hricik/2017/06/couldve-heartlands-defendant.html

June 27, 2017), the court held a venue challenge waived, writing in part: the "intervening twenty- seven years may have created reliance on VE Holding by litigants, including Nintendo, but that does not change the harsh reality that a party could have ultimately succeeded in convincing the Supreme Court to reaffirm Fourco, just as the petitioner in TC Heartland did.”…

Patent Venue: Limits on Venue in Patent Infringement Litigation

patentlyo.com/patent/2016/01/patent-limits-infringement-litigation.html

The pending Federal Circuit mandamus action of In re TC Heartland involves an interesting legal question that has now been fully briefed.

Venue in Multi-District States

patentlyo.com/patent/2017/10/venue-district-states.html

1400(b).  In TC Heartland the Supreme Court held that "a domestic corporation 'resides' only in its State of incorporation for purposes of the patent venue statute."  TC Heartland LLC v.

Supreme Court Patent Cases: Malpractice, Obviousness, and Venue

patentlyo.com/patent/2016/09/supreme-malpractice-obviousness.html

 Last week I wrote about the TC Heartland case as a mechanism for limiting venue.

Patent Venue: Cyberspace does not Expand Place of Business

patentlyo.com/patent/2017/09/patent-cyberspace-business.html

The decision here further solidifies the impact of the TC Heartland case -- spreading jurisdiction out and away from E.D.

Venue Challenges Part 2

patentlyo.com/patent/2016/07/venue-challenges-part.html

While law professors call for venue patent reform, the TC Heartland venue and personal jurisdiction challenge appears to still have legs.

The Imminent Outpouring from the Eastern District of Texas

patentlyo.com/lawjournal/2017/03/imminent-outpouring-district.html

When the Supreme Court reverses the Federal Circuit's venue ruling in the TC Heartland case, a reversal widely expected, it will return patent venue to the time prior to 1988, when the residence of a corporation for patent venue purpose was limited to (i) a district within the state of incorporation, or (ii) a district where the corporation has a regular and established place of business and has allegedly committed an act of infringement.

Goodbye E.D.Texas as a Major Patent Venue

patentlyo.com/patent/2016/12/goodbye-patent-venue.html

In a case with the potential to truly shake-up the current state of patent litigation, the Supreme Court has granted certiorari in the patent venue case TC Heartland v.

Supreme Court Patent Cases: Post Sale Exhaustion

patentlyo.com/patent/2016/11/supreme-patent-exhaustion.html

Both J&J and Eon are only marginally patent cases, the core procedure case now pending is TC Heartland that would substantially upset the status quo of patent lawsuit concentration in E.D.

Supreme Court 2017 – Patent Preview

patentlyo.com/patent/2017/01/supreme-patent-preview.html

§ 271(f)(1) for supplying single component); Impression Products (using patents as a personal property servitude); Sandoz (BPCIA patent dance); and last-but-not-least TC Heartland (Does the general definition of "residence" found in 28 U.S.C.

Sen. Orrin Hatch on Patent Reform

patentlyo.com/patent/2017/10/orrin-patent-reform.html

Venue: The Senate will consider the impact of TC Heartland and whether further guidance is needed from Congress.  The statement suggests Hatch's position that the limitations are beneficial because they limit "patent trolls’ ability to forum-shop."…

Guest Post: What Would Happen to Patent Cases if They Couldn’t all be Filed in Texas?

patentlyo.com/patent/2016/03/happen-patent-couldnt.html

Today, the Federal Circuit heard oral argument in the mandamus petition brought in the TC Heartland case.

First Post-Samsung Design Patent Damages Verdict

patentlyo.com/patent/2017/10/samsung-damages-verdict.html

 The transfer was deemed appropriate under the TC Heartland case.

Supreme Court Update: Are Secondary Indicia of Invention Relevant to Eligibility?

patentlyo.com/patent/2017/02/secondary-invention-eligibility.html

Briefing: TC Heartland LLC v. Kraft Food Brands Group LLC, No 16-341 (Does the general and broad definition of "residence" found in 28 U.S.C.

N.D. Cal New Disclosure Rules

patentlyo.com/patent/2017/02/new-disclosure-rules.html

 However, that option will be severely limited if the Supreme Court tightens patent venue in the pending TC Heartland case.

Supreme Court Update: Extending the ITC’s Reach Beyond US Borders

patentlyo.com/patent/2016/10/supreme-extending-borders.html

Venue in Patent Cases:  TC Heartland LLC v. Kraft Food Brands Group LLC, No 16-341 (Does the general and broad definition of "residence" found in 28 U.S.C.

Supreme Court Patent Cases – September 28 Update

patentlyo.com/patent/2016/09/supreme-september-update.html

Venue in Patent Cases:  TC Heartland LLC v. Kraft Food Brands Group LLC, No 16-341 (Does the general and broad definition of "residence" found in 28 U.S.C.

Support for Mandamus Action to Limit Patent Forum Shopping

patentlyo.com/patent/2015/11/support-mandamus-shopping.html

Last week I discussed the TC Heartland mandamus petition here and here. Two amicus briefs have now been filed in support of the petition.