Patent venue

28 U.S.C. § 1400(b); TC Heartland LLC v. Kraft Foods Group Brands LLC, 581 U.S. 258 (2017); In re Cray Inc., 871 F.3d 1355 (Fed. Cir. 2017); In re HTC Corp., 889 F.3d 1349 (Fed. Cir. 2018).

Venue in patent infringement actions is governed by a special, restrictive statute. After the Supreme Court's 2017 decision in TC Heartland, a patentee may sue a domestic corporate defendant only where it is incorporated or where it has a regular and established place of business and has committed acts of infringement. The rule sharply concentrated patent litigation in a handful of districts.

The rule

Patent venue is governed by a single statute, 28 U.S.C. § 1400(b), and not by the general venue statute, 28 U.S.C. § 1391. A patent infringement action against a domestic corporation may be brought only (i) in the district where the defendant resides — meaning, for a domestic corporation, its state of incorporation — or (ii) in any district where the defendant has committed acts of infringement and has a regular and established place of business. The Supreme Court reaffirmed that exclusive reading in TC Heartland LLC v. Kraft Foods Group Brands LLC, 581 U.S. 258 (2017), overruling decades of Federal Circuit precedent that had treated § 1391's broad definition of corporate residence as supplying the meaning for § 1400(b).

The rule produced an immediate redistribution of patent filings. In the year after TC Heartland, filings in the Eastern District of Texas dropped substantially, while filings in Delaware — the state of incorporation for many large companies — rose. The Western District of Texas later attracted a new concentration once Judge Albright established a patent-friendly standing order. See W.D. Tex. and D. Del..

Governing statute

Section 1400(b) reads, in full: "Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business." It is an exclusive venue statute. Schnell v. Peter Eckrich & Sons, Inc., 365 U.S. 260 (1961); Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222 (1957).

Two related statutes interact with § 1400(b):

28 U.S.C. § 1391(c)(3) supplies the rule for foreign defendants — they may be sued in any judicial district. The Federal Circuit confirmed in In re HTC Corp., 889 F.3d 1349 (Fed. Cir. 2018), that § 1391(c)(3) supplements § 1400(b) and that § 1400(b) does not apply to foreign defendants.
28 U.S.C. § 1404(a) permits transfer "for the convenience of parties and witnesses, in the interest of justice" to any other district where the action could have been brought. Even when venue is proper, § 1404(a) transfer is a routine and frequently dispositive battle in patent cases.

The framework: § 1400(b) prong by prong

The "resides" prong: state of incorporation

For a domestic corporate defendant, "resides" means the state of incorporation. TC Heartland, 581 U.S. at 265. If the corporation is incorporated in a state with multiple districts, venue lies in any district within that state — though courts have split on whether the corporation must have minimum contacts with the particular district. See In re BigCommerce, Inc., 890 F.3d 978 (Fed. Cir. 2018) (a domestic corporation incorporated in a multi-district state resides only in the single district where it maintains its principal place of business or is registered, not in every district within that state).

The "regular and established place of business" prong

Under In re Cray Inc., 871 F.3d 1355 (Fed. Cir. 2017), the second prong of § 1400(b) requires three elements:

A physical place in the district. A "place" is a building or part of a building set apart for any purpose. Virtual or transient locations are insufficient. A server rack housed in a third party's data center, by itself, is not a place of the defendant.
A regular and established place. The location must operate in a steady, uniform, orderly, and methodical manner. Sporadic or temporary activity does not qualify.
A place of the defendant. The defendant must establish or ratify the place as its own. Employee homes generally do not qualify unless the defendant requires the employee to maintain the location and uses it as a business address. In re Google LLC, 949 F.3d 1338 (Fed. Cir. 2020), held that a third-party server hosted on the defendant's behalf does not satisfy the "place of the defendant" prong.

"Acts of infringement"

The patentee must also plead or prove that acts of infringement occurred in the district. Sales of an accused product into the district generally suffice, but offering for sale or making — not just selling — within the district may also qualify. The Federal Circuit has not required that the same acts of infringement support both prongs of § 1400(b); a defendant's general business activity in the district plus any accused acts will satisfy the statute.

Foreign defendants

Foreign corporations and unincorporated foreign entities may be sued in any judicial district under 28 U.S.C. § 1391(c)(3). In re HTC confirmed that § 1400(b) applies only to domestic defendants. A foreign parent and its U.S. subsidiary, however, are treated separately: § 1400(b) governs the subsidiary, and § 1391(c)(3) governs the parent, even when both are sued together.

Section 1404(a) transfer

Even where venue is proper, § 1404(a) transfer remains available. The Federal Circuit applies the regional circuit's law on transfer, which in patent cases most often means the Fifth Circuit's In re Volkswagen of America, Inc., 545 F.3d 304 (5th Cir. 2008) (en banc), framework. The Volkswagen factors comprise four "private interest" factors and four "public interest" factors:

Private interest: (1) relative ease of access to sources of proof; (2) availability of compulsory process to secure the attendance of witnesses; (3) cost of attendance for willing witnesses; (4) all other practical problems that make trial easy, expeditious, and inexpensive.
Public interest: (1) administrative difficulties flowing from court congestion; (2) local interest in having localized interests decided at home; (3) familiarity of the forum with the law that will govern the case; (4) avoidance of unnecessary problems of conflict of laws.

The Fifth Circuit and Federal Circuit have repeatedly held that the convenience of party and non-party witnesses is the most important factor. In re Genentech, Inc., 566 F.3d 1338 (Fed. Cir. 2009).

Burden, timing, and key deadlines

The plaintiff bears the burden of establishing proper venue once the defendant raises the issue. In re ZTE (USA) Inc., 890 F.3d 1008 (Fed. Cir. 2018). On a § 1404(a) transfer motion, the moving party must show that the transferee venue is "clearly more convenient." In re Volkswagen, 545 F.3d at 315.

Rule 12(b)(3) motion to dismiss for improper venue. Must be raised in the first responsive pleading or it is waived under Rule 12(h)(1). A defendant who answers without raising venue cannot later argue that § 1400(b) was not satisfied.
Section 1404(a) motion to transfer. May be filed at any time, but courts strongly disfavor transfer motions filed after substantial litigation activity. Most defendants file within sixty to ninety days after answering. The Federal Circuit has held that transfer motions should be ruled on early, before extensive discovery. In re Apple Inc., 979 F.3d 1332 (Fed. Cir. 2020).
Mandamus. A party seeking interlocutory review of a venue ruling must file a petition for mandamus in the Federal Circuit, generally within a reasonable time after the order, and must show a "clear abuse of discretion" producing a "patently erroneous" result. In re Volkswagen, 545 F.3d at 309–10.

Interaction with related procedural mechanisms

Mandamus practice

The Federal Circuit has used mandamus actively to police venue decisions. The court issued repeated mandamus orders directing transfer out of the Eastern District of Texas in cases such as In re TS Tech USA Corp., 551 F.3d 1315 (Fed. Cir. 2008), and In re Genentech. Beginning in 2020, the court turned similar attention to the Western District of Texas. See, e.g., In re Apple Inc., 979 F.3d 1332 (Fed. Cir. 2020); In re Adobe Inc., 823 F. App'x 929 (Fed. Cir. 2020). Mandamus is technically extraordinary, but in practice it has become a routine tool for venue review.

Personal jurisdiction

Venue and personal jurisdiction are independent. A defendant can be subject to personal jurisdiction in a district yet still object to venue under § 1400(b), and vice versa. Courts decide jurisdiction first, but venue motions are commonly briefed in parallel.

Multidistrict litigation

The Judicial Panel on Multidistrict Litigation can transfer related patent cases to a single district under 28 U.S.C. § 1407 for coordinated pretrial proceedings. After pretrial proceedings, cases must be remanded to their originating venues for trial. Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998).

Hatch-Waxman venue

In Hatch-Waxman cases, the act of infringement is the filing of an Abbreviated New Drug Application (ANDA). The Federal Circuit held in Valeant Pharmaceuticals North America LLC v. Mylan Pharmaceuticals Inc., 978 F.3d 1374 (Fed. Cir. 2020), that acts of infringement under § 1400(b) occur only where the ANDA is submitted, sharply narrowing venue in generic-drug litigation.

Joinder

Under 35 U.S.C. § 299, a patentee may join multiple defendants in a single action only where the same accused product or process is at issue. Even when joinder is proper, venue must be independently satisfied for each defendant.

Practical notes

Plead venue with care

Conclusory allegations that the defendant has a regular and established place of business will not survive a Rule 12(b)(3) motion. The complaint should identify the physical place, describe its operation, and tie it to the defendant. Where venue is challenged, courts often permit limited venue discovery before ruling.

Choose the forum that survives transfer

Because § 1404(a) transfer is so routine, the practical question is not just where venue is proper but where the case will actually be tried. Plaintiffs increasingly file in Delaware or in a defendant's home district to forestall transfer.

Document the place

Defendants resisting venue should preserve evidence about the nature, regularity, and ownership of any in-district facility. The Cray three-prong test is fact-driven and turns on details: lease agreements, employee residency requirements, the defendant's own marketing of the location.

Mandamus on a tight schedule

A petition for mandamus on a venue order should be filed promptly. Although there is no fixed deadline, the Federal Circuit has denied petitions filed months after the order on the ground that the petitioner waited too long.

Anchor witnesses early

The convenience of non-party witnesses dominates the Volkswagen analysis. Identify, by name and relevance, the prior art witnesses, named inventors, and engineers in the transferee venue. Courts give little weight to generic statements about "many witnesses."

Pressure points

Servers and "places of the defendant"

After In re Google LLC, 949 F.3d 1338 (Fed. Cir. 2020), an in-district server alone does not establish venue. But the Federal Circuit has not finally resolved every variation: dedicated content delivery network nodes, edge servers, and remote employees with employer-required home offices remain contested.

Multi-district incorporated defendants

In re BigCommerce resolved venue for Texas-incorporated defendants but its reasoning has been read narrowly. Courts continue to debate where, exactly, a multi-district-state corporation "resides" when it has only a registered agent in one district.

Western District of Texas mandamus

Beginning in 2020 and accelerating thereafter, the Federal Circuit issued a wave of mandamus orders directing transfer out of the Waco division. The decisions tightened the convenience analysis and prompted the chief judge of the Western District to redistribute patent filings across the district's divisions in 2022. The long-term equilibrium remains unsettled. See W.D. Tex..

Foreign-parent / U.S.-subsidiary cases

Suits against foreign parents and their U.S. subsidiaries raise mixed-venue questions. § 1391(c)(3) supplies broad venue against the parent, while § 1400(b) restricts venue against the subsidiary. The mismatch sometimes produces severance or transfer.

Pendent venue

Whether venue over a properly-venued patent claim supports related non-patent claims (for example, trade secret or breach of contract) remains the subject of district-court splits.

Authorities

Statutes and rules

28 U.S.C. § 1400(b) (patent venue)
28 U.S.C. § 1391(c)(3) (foreign defendants)
28 U.S.C. § 1404(a) (transfer for convenience)
28 U.S.C. § 1407 (multidistrict litigation)
35 U.S.C. § 299 (joinder of accused infringers)
Fed. R. Civ. P. 12(b)(3), 12(h)(1)

Cases

TC Heartland LLC v. Kraft Foods Group Brands LLC, 581 U.S. 258 (2017)
Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222 (1957)
In re Cray Inc., 871 F.3d 1355 (Fed. Cir. 2017)
In re HTC Corp., 889 F.3d 1349 (Fed. Cir. 2018)
In re BigCommerce, Inc., 890 F.3d 978 (Fed. Cir. 2018)
In re Google LLC, 949 F.3d 1338 (Fed. Cir. 2020)
In re ZTE (USA) Inc., 890 F.3d 1008 (Fed. Cir. 2018)
In re Volkswagen of America, Inc., 545 F.3d 304 (5th Cir. 2008) (en banc)
In re Genentech, Inc., 566 F.3d 1338 (Fed. Cir. 2009)
In re Apple Inc., 979 F.3d 1332 (Fed. Cir. 2020)
Valeant Pharmaceuticals North America LLC v. Mylan Pharmaceuticals Inc., 978 F.3d 1374 (Fed. Cir. 2020)

Last reviewed: 2026