The District of Delaware is the second federal district court after the E.D. Texas to deny a motion for improper venue under the second prong of 28 USC 1400(b) when it denied Apple's MTD for improper venue. Prowire LLC v. Apple, Inc., 1-17-cv-00223 (D. Del. Aug. 9, 2017) (Order, Kearney, J., Dkt. 46). In this case, Apple argued that one retail store in the district is insufficient to establish a "permanent and continuous presence" that meets the "regular and established place of business" test. In rejecting Apple's position, Judge Kearney noted that Apple "sells the alleged infringing technology to consumers on a daily basis."
As various federal district courts try to grapple with the Supreme Court's decision in TC Heartland, we can expect patent owners to challenge motions to dismiss for improper venue by contending that defendant has a regular and established place of business within the district.
As various federal district courts try to grapple with the Supreme Court's decision in TC Heartland, we can expect patent owners to challenge motions to dismiss for improper venue by contending that defendant has a regular and established place of business within the district.
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