On November 15, 2017, Federal Circuit Judges Taranto, Chen, and Hughes in In re Micron Technology, Inc. (Appeal No. 2017-138) held that TC Heartland had tightened the rules on patent venue and changed the law and that the ruling applies to existing cases as well as new ones. The Nov. 15 ruling by a U.S. Court of Appeals for the Federal Circuit panel opened the door for defendants to argue venue transfers on the grounds that the plaintiff chose the wrong court, even if they hadn’t previously raised the issue. Micron Technology had suggested the Federal Circuit for a writ of mandamus, to set aside a district court’s denial of Micron’s motion to dismiss patent infringement claims or to transfer the case due to improper venue.
Because TC Heartland has been held as a change in the law, defendants that did not originally argue venue will not be found to have waived a venue challenge. However, a defendant will need to consider raising any such venue objection in a timely fashion, as well as whether it may have consented to venue by action and whether any other arguments may be presented that it has forfeited an otherwise proper venue objection.