Patent Venue Update

CAFC Mandamus Decisions Regarding place of business
In series of recent mandamus decisions, the Federal Circuit has clarified the requirements to establish proper venue for a patent lawsuit. Most recently, in In Re: Volkswagen Group of Am. Inc., 2022-108, 2022-109, 2022 WL 697526 (Fed. Cir. 2022), the Court held that independent car dealerships were not distributors' agents--thus venue as to the distributors could not be shown based on the operations of car dealers in the district. This decision follows on the heels of other mandamus decisions concerning the question of where a corporation resides or has a regular and established place of business:
  • In re Cray Inc., 871 F.3d 1355, 1357 (Fed. Cir. 2017) (establishing the framework for proving that a corporate defendant has a regular and established business in the district while holding that an employee who works from home does not show that the employer established a place of business in the district);
  • In re ZTE (USA) Inc., 890 F.3d 1008, 1011 (Fed. Cir. 2018) (contracting with provider of call center services that operates in the district insufficient to establish venue);
  • In re Big Commerce, Inc., 890 F.3d 978 (Fed. Cir. 2018) (corporation resides in the district in which it maintains its principal place of business, if within the state of its incorporation, otherwise in the district of its registered offices, as recorded in its corporate filings).
  • In re Google LLC, 949 F.3d 1338, 1345 (Fed. Cir. 2020) (although Google's contracts with an ISP gave Google considerable control over installation and maintenance services performed on hosted servers, such contracts did not give the ISP agency to carry out Google's business);
  • Andra Group, LP v. Victoria's Secret Stores, L.L.C., 6 F.4th 1283 (Fed. Cir. 2021) (advertising and promoting local retailers insufficient to establish venue for the corporate parent).

Patent Venue

Pleading under 28 U.S.C.A. § 1400(b)
Judge Albright recently clarified that the Court will not require that venue be proved as to each accused product. “This Court has not previously, and will not now, adopt a product-by-product inquiry for venue.” See Kirsch Research and Development LLC v. BlueLinx Corporation, 6-20-cv-00316 (W.D.T.X. Jul. 19, 2021). A key factor in the Court’s decision not to dismiss count II of the complaint appeared to be that the plaintiff alleged some act of infringement, even if not every action needed to practice the method claims, took place in the district.
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