In a series of decisions, the US Court of Appeals for the Federal Circuit continued its trend of strict adherence to § 1400(b) when analyzing proper venue for patent infringement actions under the Supreme Court of the United States’ 2017 decision in TC Heartland (IP Update, Vol. 20, No. 5). In re: ZTE (USA) Inc., Case No. 18-0113 (Fed. Cir., May 14, 2018) (Linn, J); In re: BigCommerce, Inc., Case Nos. 18-0120, -0122 (Fed. Cir., May 15, 2018) (Linn, J); In re: HTC Corp., Case No. 18-130 (Fed. Cir., May 9, 2018) (Prost, J).

In In re: ZTE, the Federal Circuit granted mandamus to resolve the unsettled questions of (1) whether regional or Federal Circuit law governs the burden of proof on the propriety of venue under § 1400(b), and (2) which party bears that burden. The Court determined that the burden for proving venue under § 1400(b) was an issue unique to patent law, intimately related to a substantive determination, and that unlike § 1404, all patent venue appeals under § 1406(a) would be referred to the Federal Circuit. Therefore Federal Circuit law, not regional law, applies. As to the second question, the Federal Circuit determined that, consistent with TC Heartland’s interpretation of the patent venue statute as a more restrictive statute than the general venue statute, it is plaintiff’s burden to establish venue in a patent case.

In In re: BigCommerce, Inc., the Federal Circuit held that a domestic corporation incorporated in a multi-district state does not “reside” for purposes of § 1400(b) in each and every judicial district in that state. Analyzing the language of § 1400, the Court found that the statute plainly states that a “civil action for patent infringement may be brought in the judicial district where the defendant resides.” Based on the plain language of § 1400 and the legislative history, the Court held that the proper venue for a domestic corporation is either (1) in the specific judicial district where it maintains its principal place of business, or, failing that, (2) in the specific judicial district in which its registered office is located.

In In re: HTC Corp., the Federal Circuit held that § 1400 does not apply to foreign corporations. The Court found that applying patent venue rules to foreign corporations would create a venue gap where a federal court has jurisdiction, but no proper venue to exercise that jurisdiction exists. Relying on the Supreme Court of the United States’ 1972 decision in Brunette Machine Works v. Kockum Industries, the Court reaffirmed the long-established rule that suits against foreign corporations are outside the operation of all federal venue laws, and patent lawsuits against foreign corporations may be brought in any judicial district where the defendant is subject to personal jurisdiction.

Brian Jones represented ZTE on the petition in In re: ZTE (USA) Inc.