Losing Argument of the Week: Patent Venue...

Gaston Kroub, Markman Advisors LLC

Welcome to a new segment. In "Losing Argument of the Week", we take a look at a losing argument raised in a case involving a timely patent litigation issue.

This week, we focus on patent venue, a previously stable area of patent law that is seeing renewed attention and dynamism in light of the Supreme Court's TC Heartland decision. 

Plaintiffs hoping to have their choice of venue respected by courts now have to try some creative arguments in order to avoid dismissal or transfer. In Patent Holder LLC, v. Lone Wolf Distributors, Inc. and Lone Wolf R&D LLC, Civil Action No. 17-23060-Civ-Scola (SDFL), the plaintiff tried to satisfy the defendant 'physical place of business' venue requirement by pointing to the possibility of "dealers... selling Lone Wolf products in this District." Not only did the Court reject that argument, it even said that the allegation did not even warrant giving plaintiff an opportunity to take jurisdictional discovery. Case transferred, and request for discovery denied.

To recap, venue arguments unsupported by a plausible claim that defendant has a physical place of business in the district  (in a district where defendant is not incorporated) are likely losers -- and may not even open the door to jurisdictional discovery.