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Supreme Court Will Review Limits on Special Patent Venue Statute

​​The Supreme Court on December 14, 2016, agreed to consider whether 28 U.S.C. § 1400(b) is the sole and exclusive provision governing venue in patent infringement actions and is not supplemented by 28 U.S.C. § 1391(c). TC Heartland LLC, v. Kraft Food Brands Group LLC, U.S., No. 16-341, cert. granted 12/14/2016. 
The grant of certiorari will review a Federal Circuit decision that 2011 changes to the general venue statute at 28 U.S.C. 1391 had no effect on the rule in VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574 (Fed. Cir. 1990), that the special IP venue statute at 28 U.S.C. 1400 is governed by definition of "resides" in the general venue statute. In re TC Heartland, LLC, Fed. Cir. No. 2016-105, 4/29/2016.  
In 1957, the Supreme Court looked at the patent and general venue statutes in Fourco Glass Co. v. Transmirra Prods., 353 U.S. 222 (1957). Section 1400(b) has long stated that any civil action for patent infringement may be brought in the judicial district "where the defendant resides" or where it has committed acts of infringement and has a regular place of business.  The 1957 version of Section 1391(c) stated that a corporation may be sued in any judicial district where it is incorporated, licensed to do business, or is doing business, and that "such judicial district shall be regarded as the residence of such corporation for venue purposes." 
The Fourco decision held that Section 1400(b) is not supplemented by the general venue provision at 1391(c). However, in 1988 Congress changed the general venue provision for all corporate defendants with an amendment to Section 1391 that defined "resides" for venue determinations "under this chapter" as any place a court has personal jurisdiction over the corporate defendant. 
In 1990, the Federal Circuit in VE Holdings concluded that the 1988 amendment overturned the Fourco decision and transformed the venue question for corporations in patent suits into a question of personal jurisdiction. According to the court, the amendment adding the definition of "resides" to Section 1391 also added the phrase "for purposes of venue under this chapter," requiring the definition to be applied to Section 1400(b) which appears in the same chapter of Title 28. Four years later, in Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558 (Fed. Cir. 1994), the Federal Circuit held that personal jurisdiction for a patent litigation defendant essentially exists wherever an infringing product is made, used or sold. 
Congress has since made a variety of amendments to Section 1391, including the 2011 addition of the phrase "For all venue purposes" to the beginning of paragraph (c) on residency, and the addition of the phrase "Except as otherwise provided by law" to the beginning of paragraph (a). 
Federal Circuit Panel Decision 
This case came to the Federal Circuit in a mandamus petition to overcome a district court denial of a change of venue based on the Federal Circuit's VE Holdings decision. 
The Federal Circuit affirmed that decision.  It rejected Heartland's argument that, whatever effect of the phrase "for all venue purposes" in Section 1391(c), the phrase "except as otherwise provided by law" in paragraph (a) limits Section 1391 not only where it conflicts with other statutes, but also where it conflicts with Supreme Court case law—specifically, the law of the Fourco decision. 
Click here​ to read the petition for certiorari.