Patent Litigation Venue

Under 28 U.S.C. § 1400(b), a civil action for patent infringement may only be brought in: (1) the judicial district where the defendant resides (for a domestic corporation, where it is incorporated under state law), or (2) the judicial district where the defendant has committed acts of infringement AND has a regular and established place of business. This is the exclusive patent venue statute — general federal venue rules (28 U.S.C. § 1391) do not apply to patent cases. TC Heartland LLC v. Kraft Foods Group Brands LLC (S.Ct. 2017) confirmed this limitation.

Before TC Heartland (2017), courts had broadly interpreted 'resides' in § 1400(b) to mean anywhere a corporation was subject to personal jurisdiction — effectively the entire country. This allowed patent owners to file anywhere, creating massive forum shopping to plaintiff-friendly courts like E.D. Texas. TC Heartland held that for purposes of § 1400(b), a domestic corporation 'resides' only in its state of incorporation. This dramatically curtailed venue options for NPEs suing large corporations incorporated in Delaware.

Because most large U.S. corporations are incorporated in Delaware, making D. Delaware a proper venue for patent suits against them under § 1400(b)'s 'resides' prong. After TC Heartland, D. Delaware became the dominant patent litigation forum — accounting for a large plurality of all patent cases filed in the U.S. The court has experienced patent judges, a well-developed patent case law body, and relatively predictable procedures. Large companies cannot escape D. Delaware based on venue challenges.

E.D. Texas, particularly Judge Albright's Waco division (W.D. Texas), replaced some of E.D. Texas's volume as patent filings shifted. E.D. Texas filings dropped significantly post-TC Heartland because NPEs could no longer sue most defendants there based on personal jurisdiction alone — they needed a 'regular and established place of business' in the district. W.D. Texas / Waco, under Judge Albright, became a new hotspot due to aggressive scheduling that limits transfers and fast trial settings, until the Federal Circuit and Fifth Circuit began granting more mandamus transfers.

Even when venue is proper under § 1400(b), a defendant can move to transfer to a more convenient forum under 28 U.S.C. § 1404(a) — 'for the convenience of parties and witnesses, in the interest of justice.' Courts analyze public and private interest factors: access to evidence, witness convenience, relative ease of access to sources of proof, court congestion, local interest in the case, and familiarity with applicable law. In re Apple Inc. (Fed. Cir. 2021) and subsequent Federal Circuit mandamus orders from W.D. Texas cases established that courts must meaningfully evaluate § 1404 factors and cannot reflexively deny transfer.