On May 15, 2018, the Federal Circuit in In re BigCommerce issued an order in response to writs of mandamus seeking dismissal and transfer. Nos. 2018-120, 2018-122, 2018 WL 2207265 (Fed. Cir. May 15, 2018). The panel ruled that for purposes of the patent venue statute (28 U.S.C. § 1400(b)), if a domestic corporation is incorporated in a state having several judicial districts, then it “resides” in only one district. Id. at *6. That district is either (1) the district in the state where the corporation maintains its principal place of business or (2) if that does not exist, then the district containing the corporation’s registered office. Id. In re BigCommerce follows the Supreme Court’s seminal 2017 TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct. 1514 (2017) decision altering the course of where domestic corporations may be sued for patent infringement.
On May 14, 2018, the Federal Circuit (Judge Linn, with Judges Reyna and Hughes) ruled on mandamus to address two important issues related to proper venue in a patent infringement case: 1) whether regional or Federal Circuit law governs the analysis of proper venue under 28 U.S.C. § 1400(b), and 2) which party bears the burden of persuasion on the issue when a defendant challenges proper venue. The court held that Federal Circuit law applies, and the plaintiff bears the burden of persuasion. In re: ZTE (USA) Inc., No. 2018-113 (Fed. Cir. May 14, 2018).