Federal Circuit Holds That TC Heartland Changed Patent Venue Law, Resolving Split on Waiver Issue

November 16, 2017

The Federal Circuit has ruled that the US Supreme Court’s decision in TC Heartland was an intervening change in the law. This holding resolves a split among district courts as to whether defendants in cases active at the time of the decision waived the right to challenge venue under the corporate residence prong of the patent venue statute by not previously raising the issue. In a decision issued on November 15 (2017-0138), the Federal Circuit granted a petition for writ of mandamus filed by Micron (1:16-cv-11249) after a district judge denied its motion to dismiss or transfer due to improper venue. The lower court held in the earlier order that Micron had waived that defense by failing to plead it in an earlier motion, ruling that such a defense was “available” with respect to waiver because TC Heartland merely reaffirmed the Supreme Court’s existing precedent. However, the Federal Circuit reversed that denial as to waiver in its November 15 opinion (2017-0138), holding that “TC Heartland changed the controlling law in the relevant sense” because the venue defense at issue could not have been brought under the Federal Circuit’s previously controlling decision in VE Holding.

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