Thousands of pending patent cases are now on uncertain ground because of the U.S. Supreme Court TC Heartland decision in May that overturned almost three decades of Federal Circuit jurisprudence concerning venue in patent litigation. Our panel of veteran litigators will examine what has happened since in district courts and how that disorder is likely to be resolved on two key issues:
- Is Heartland an “intervening change in law” that allows defendants to revive a venue challenge? Does it matter how far their cases have progressed? One panel of the Federal Circuit, split 2-1, has already refused to grant mandamus to defendants who argued that a federal judge in the Eastern District of Virginia had abused discretion in refusing to move a close-to-trial case. But few expect that to be the Federal Circuit’s last word on the issue.
- What will be the new rules for proper venue that accord with the Supreme Court’s interpretation of section 1400(b)? Most notably, what constitutes “a regular and established place of business”? In late June, Judge Rodney Gilstrap of the Eastern District of Texas, who oversees the largest docket of patent cases in the U.S., laid out a four-factor test in Raytheon v. Cray. Our panel will examine the influence Judge Gilstrap’s permissive test is already having. Cray’s writ of mandamus is pending before the Federal Circuit asking for an immediate reversal of Judge Gilstrap’s decision denying its motion to transfer. Judge Gilstrap has stayed the case and the mandamus request is still pending. Our panel will discuss the Federal Circuit’s immediate and longer-term options.
Speakers:
- Yar Chaikovsky, Paul Hastings LLP
- Michael Florey, Fish & Richardson PC
- Jonathan Suder, Friedman, Suder & Cooke
