In re Yahoo (Fed. Cir. 2017)
The Federal Circuit has ordered briefing in Yahoo’s petition for writ of mandamus on the issue of venue. The E.D.N.Y. 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. Valley Hosp., 646 F.2d 792 (2d Cir. 1981). In my view, a major problem with Yahoo’s ‘lack of knowledge’ problem was that by the time their answer was due (January 2017), TC Heartland was already pending before the Supreme Court.
Note, on the merits, the plaintiffs (AlmondNet, et. al) apparently admitted that venue would be improper – but for the waiver.
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The case involves U.S. Patent Nos. 7,822,639; 7,979,307; 8,244,574; 8,244,582; 8,244,586; 8,494,904; 8,671,139; 8,677,398; 8,775,249; and 8,959,146.