Following up to the post below, in iLife Technologies v. Nintendo (N.D. Tex. 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.”
Where we are, I think is: (a) if venue is “now” improper in a case, you better be moving on it, no matter what you did in the past as far as waiving, raising, or conceding it, and filing your motion as soon as possible; but (b) there’s going to be, I think, deference given to district court decisions on this when and if one gets to the Federal Circuit. (I vaguely recall mandamus is available if a district court transfers a case out of a circuit, and that line of review may apply here, so maybe we’ll get a review before a final judgment, or maybe a judge will certify a case for interlocutory review, or it’s appeasable under Cohen, though I doubt that.) Finally, people ought to look at the cases where, after a few recent Supreme Court cases narrowing general personal jurisdiction, folks tried to make a similar argument — that the law had changed.