The Federal Circuit has overturned the Eastern District of Texas’s test for determining proper venue under a key part of the patent venue statute. In a June 29 order, District Judge Rodney Gilstrap established a four-part, “totality of the circumstances” test for establishing venue under the “regular and established place of business” prong of 28 USC § 1400(b), also declining to transfer a suit filed by Raytheon against competitor Cray (2:15-cv-01554). However, on September 21, the Federal Circuit granted a petition for writ of mandamus filed by Cray, reversing Judge Gilstrap’s denial of Cray’s transfer motion and ruling that he had abused his discretion by misinterpreting the patent venue statute (2017-0129).
The case brought by Uniloc USA, Inc. and Uniloc Luxembourg S.A. (collectively, “Uniloc”) against Big Fish Games has been transferred from the Eastern District of Texas (2:17-cv-00172) to the Western District of Washington (2:17-cv-01183) by joint stipulation. Although Uniloc agreed to the transfer in this instance, its overall behavior in the wake of TC Heartland has bucked the general trend in which NPEs have either ridden the wave of transfers from Texas or shifted their efforts elsewhere. Many NPEs have increasingly avoided the Eastern District of Texas in new filings while either conceding to venue challenges or dismissing and re-filing existing cases in other venues, with early favorites including the District of Delaware, the Northern District of Illinois, and the Northern District of California. Uniloc, by contrast, has continued to file litigation in the Eastern District of Texas and has shown a greater willingness to push back against venue motions.