The patent venue statute restricts patent infringement actions to a judicial district where the defendant resides or where the defendant has committed acts of infringement and has a regular and established place of business. The Supreme Court’s 2017 TC Heartland decision led to renewed focus on the “regular and established place of business” aspect of the statute. Four months after TC Heartland, in In re Cray, the Federal Circuit enumerated the requirements for a place to qualify as a “regular and established place of business,” 871 F.3d 1355 (Fed. Cir. 2017). Last year, the Federal Circuit again examined the issue, holding that venue over Google was improper in the Eastern District of Texas where Google servers were used in non-Google-owned datacenters in the District but Google had no employees or agents there. See In re Google, 949 F.3d 1338 (Fed. Cir. 2020). District courts have since applied Google to determine whether venue was proper in cases involving infringement allegations against entities with corporate or contractual relationships in the relevant district. We report here on Google and certain of those cases.
The Patent Venue and Service Statutes
The patent venue statute, 28 U.S.C. §1400(b), states that “[a]ny 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.” A “domestic corporation ‘resides’ only in its State of incorporation for purposes of the patent venue statute.” TC Heartland v. Kraft Food Grp. Brands, 137 S. Ct. 1514, 1517 (2017). A “regular and established place of business” must be: (1) “a physical place in the district”; (2) “regular and established”; and (3) “the place of the defendant.” Cray, 871 F.3d at 1360.
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