Patent Riffs and Links for 7-28-17 – Effects from TC Heartland

Lex Machina’s Q2 litigation update shows trends influenced by TC Heartland and Oil States | IPWATCHDOG
“Interestingly, the Lex Machina update shows a significant decline in case filings in the Eastern District of Texas (E.D. Tex.) correlating strongly with the Supreme Court’s recent decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, a case which restricted the statute on proper venue for patent infringement cases. 293 patent cases were filed in E.D. Tex. during 2017’s second quarter. That accounts for 26 percent of all patent cases filed in district court. That percentage share of overall patent filings is actually the lowest percentage filed in E.D. Tex. going back to the third quarter of 2014.”

What Constitutes as ‘Regular and Established’ Business in TC Heartland Ruling? | INSIDECOUNSEL
Is this the right test? “Judge GIlstrap articulated a four-factor test to determine whether a defendant has a regular and established place of business as required in the second prong. First, the Court considers the extent to which a defendant has a physical presence in the district, including property, inventory, infrastructure, or people. However, the lack of a physical building in the district is not dispositive. In fact, Judge Gilstrap found that other forms of physical presence may also help support a finding of a regular and established place of business, including inventory or property in the district, the presence of infrastructure that is owned or leased by a defendant and used to provide services to customers.”

District Courts Disagree on Venue-Waiver Issues After TC Heartland | JDSUPRA
Recent cases: “Responding to cases that found waiver, the court reasoned, ‘these cases fail to explain why, if Fourco remained controlling, courts throughout the country consistently applied VE Holding in patent litigation for nearly 30 years.’ The court granted Cree’s motion for leave to amend (to assert a defense of improper venue) and transferred the case to the Middle District of North Carolina.”

Forum Shopping Tactics After TC Heartland | LEXOLOGY
“Many commentators have interpreted TC Heartland to mean that a corporate defendant’s “reside[nce]” under 28 U.S.C. § 1400(b) is the company’s home district (assuming the company’s headquarters is located in its state of incorporation). This is far from settled, however. In TC Heartland, the Court wrote that “residence” means “the State of incorporation” only. Even the notion of incorporating in a specific judicial district does not have much legal grounding. In the eyes of the states (at least the few examined for this article: California, New York and Texas), the process of incorporation does not lend itself to being limited to particular judicial districts in a given state. As such, a question remains as to whether a suit can be filed in any district within the party’s state of incorporation, or whether it must be filed in only one of the districts within the state of incorporation.”