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

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.

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

  1. David, assume the SC rules IPRs unconstitutional in Oil States. What of final IPR decisions invalidating claims? I presume those who preserved the issue may have the PTAB decision overturned in some fashion, such as by motion to the PTAB or by petition to the Director. But what of those who never asserted their rights, or who did, but did not petition the Supreme Court?

    Any views here?

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