On September 11, 2017, Chief Judge Stark of the Delaware federal district court issued two decisions providing guidelines for addressing venue challenges in patent cases. Boston Sci. Corp. et al. v. Cook Grp. Inc. et al., No. 1:15-cv-00980 (D. Del.); Bristol-Myers Squibb Co. et al. v. Mylan Pharms., Inc., No. 17-379 (D. Del.).
Burden of Proof. Third Circuit law applies to burden of proof as it is a procedural, non-patent issue and accordingly, the moving party bears the burden of proof in a venue challenge.
Physical Presence. While no fixed space in the sense of a formal office or store is necessary, some physical presence is nevertheless required for a regular and established place of business. Litigation activity is a relevant consideration and frequent participation in Hatch-Waxman litigation creates a regular and established place of business.
Venue is Fact Intensive. Venue is a fact intensive inquiry and depends on the circumstances of each case.
TC Heartland an Intervening Change. Defendants are permitted to pursue venue challenges even if they did not object to venue in their pleadings or in the years before TC Heartland issued because TC Heartland effected an intervening change in law creating an exception to the waiver rule.
Burden of Proof. Third Circuit law applies to burden of proof as it is a procedural, non-patent issue and accordingly, the moving party bears the burden of proof in a venue challenge.
Physical Presence. While no fixed space in the sense of a formal office or store is necessary, some physical presence is nevertheless required for a regular and established place of business. Litigation activity is a relevant consideration and frequent participation in Hatch-Waxman litigation creates a regular and established place of business.
Venue is Fact Intensive. Venue is a fact intensive inquiry and depends on the circumstances of each case.
TC Heartland an Intervening Change. Defendants are permitted to pursue venue challenges even if they did not object to venue in their pleadings or in the years before TC Heartland issued because TC Heartland effected an intervening change in law creating an exception to the waiver rule.
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