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Daniel Silver and Alexandra Joyce of McCarter & English. Courtesy Photo Daniel Silver and Alexandra Joyce of McCarter & English. Courtesy Photo

The U.S. District Court for the District of Delaware has long been a preeminent forum for the litigation of intellectual property (IP) disputes, particularly patent disputes. While the popularity of other fora has waxed and waned with changes in the law—for example, the change in venue law brought about by the U.S. Supreme Court’s decision in TC Heartland v. Kraft Foods Group Brands, 137 S.Ct. 1514 (2017)—Delaware has remained a top venue. Below, we discuss why that is, how Delaware has handled the COVID-19 pandemic and what we see in the future.

Two things combine to explain Delaware’s position as a top forum for the resolution of IP disputes. The first has nothing to do with IP at all, and that is the fact that a disproportionate number of corporations, limited liability companies and other entities are organized under Delaware law. See Delaware Department of State Division of Corporations, Delaware Corporate Law, “Why Businesses Choose Delaware,” https://corplaw.delaware.gov/why-businesses-choose-delaware/ (Last accessed: March 11, 2021) (“Today, more than one million business entities have made Delaware their legal home. Although the number of entities organized in Delaware is impressive, even more important is the fact that so many large and important corporations whose shares are listed on major stock exchanges are incorporated in Delaware. Indeed, more than 60% of the Fortune 500 companies are incorporated in Delaware.”). As a result, these entities are subject to personal jurisdiction in Delaware. See Fed. R. Civ. P. 4(k)(1)(A) (service of process is effective to establish personal jurisdiction over a defendant “who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located”). And likewise, venue in the District of Delaware is appropriate in patent suits. See 28 U.S.C. Section 1400(b) (“Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.”); see also TC Heartland, 137 S.Ct. at 1517, 1520 (holding that a domestic corporation “resides” in its state of incorporation for purposes of the patent venue statute). The second is comfort—as a long-standing go-to venue for patent litigants, parties and their lawyers are comfortable in Delaware. The judges in Delaware are all very experienced with patent law, whether as a result of their background prior to taking the bench or as a result of trial by fire.

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