Texas Judge Finds Waiver and Denies Transfer, Holding that TC Heartland Did Not Change Venue Law

June 30, 2017

A Texas judge has declined to transfer a case brought against Nintendo (3:13-cv-04987) by iLife Technologies, Inc., ruling that the defendant waived its ability to challenge venue. Nintendo had admitted that venue was proper in a 2014 answer but asserted in a May 30, 2017 motion to dismiss or transfer that it had not waived its right to challenge venue because that defense was not available under the Federal Circuit’s decision in VE Holding. That precedent was overturned on May 22 by the US Supreme Court in TC Heartland, which returned a key portion of the patent venue statute to its prior, narrower interpretation: a corporate defendant is now deemed to “reside” in its state of incorporation, as the Court had previously held in Fourco Glass Co. v. Transmirra Products. Nintendo asserted that TC Heartland represents an intervening change in patent venue law, thus allowing it to raise “an otherwise-waived defense”. However, District Judge Barbara M.G. Lynn disagreed, holding in a June 27 order that TC Heartland was not a change of law because it merely reaffirmed that Fourco had remained in effect.

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