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Patent Litigation Venue Toolkit
Practical Law Toolkit w-032-2070 (Approx. 6 pages)
Patent Litigation Venue Toolkit
by Practical Law Intellectual Property & Technology
| Maintained • USA (National/Federal) |
Resources to assist patent litigation counsel with motions to transfer venue under 28 U.S.C. § 1404(a) and motions to dismiss for improper venue under 28 U.S.C. § 1406(a).
Under the patent venue statute, patent owners can file infringement litigation "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" (28 U.S.C. § 1400(b)). Accused infringers frequently challenge venue at the beginning of a patent infringement case by filing motions to:
- Transfer venue under 28 U.S.C. § 1404(a), which applies when a case, though brought in a proper venue, should be transferred to another judicial district for the convenience of the parties and witnesses (In re Apple Inc., 979 F.3d 1332, 1346 (Fed. Cir. 2020)).
- Dismiss for improper venue under 28 U.S.C. § 1406(a) and Federal Rule of Civil Procedure 12(b)(3), which authorize dismissal when venue is wrong or improper in the forum where plaintiff filed the lawsuit (Atl. Marine Constr. Co. v. U.S. Dist. Ct. for W. Dist. of Texas, 571 U.S. 49, 55 (2013)).
Because these motions often set the procedural and substantive tone for the rest of the case, counsel for both the moving and non-moving parties must carefully consider the content of these motions and responses.
This Toolkit identifies resources to help counsel navigate venue-related motions in patent infringement cases.