In an article for Law360, Bass, Berry & Sims attorney Terry Clark provided insight on the standing of patent venue law one year after the Supreme Court’s ruling in TC Heartland, a decision establishing that patent suits can only be filed where the accused infringer is incorporated or has a “regular and established place of business.” Since the TC Heartland decision in 2017, the lower courts have issued rulings to clarify some of the uncertainly left by the ruling; however, as Terry pointed out, there is still more work for the courts to do to bring additional clarity on venue. “There are some really critical open questions for courts to consider in the next 12 months or so to give a better idea of what the venue requirements are going to be,” explained Terry.

One open question that has been answered in the courts since the ruling is whether foreign companies can still be sued anywhere in the United States. The Federal Circuit said this month that the TC Heartland ruling only applies to domestic companies, meaning foreign companies can still be sued in any U.S. court. “That’s going to cut off a lot of the arguments that TC Heartland affected venue against foreign corporations,” said Terry. “The general venue statute is going to control, so there’s predictability.”

Those wanting to sue in plaintiff-friendly courts could use this ruling to only bring suit against the foreign parent of a multinational corporation. “That’s significant in the sense that it will allow more plaintiffs to still bring suits against foreign defendants in the Eastern District of Texas,” noted Terry.

Questions about what level of allegedly infringing activity conveys venue will soon get more attention, such as situations when a business is established in one district but only commits acts of infringement elsewhere. “Before TC Heartland, the venue statute was broad enough that you didn’t need to get into that level of granular detail, but now it looks like you’re going to have to,” said Terry.

It has yet to be seen what districts – perhaps those that have not traditionally seen many patent suits – will become appealing to plaintiffs because of local rules and speedy dockets. “There are really interesting questions right now that have not yet been resolved.”

The full article, “What We Know About Patent Venue Post-TC Heartland,” was published by Law360 on May 23, 2018, and is available online.