Defendant Did Not Waive Venue Objection by Failing to Contest Venue Prior to TC Heartland​

Following the Supreme Court decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct. 1514 (2017), the court granted defendant's motion to amend its answer to contest venue and rejected plaintiff's argument that TC Heartland was not an intervening change of law that excused defendant's waiver of its objection to venue. "[Plaintiff] argues, and several district courts have found, that the defense of improper venue has always been available because other patent defendants would have 'ultimately succeeded in convincing the Supreme Court to reaffirm [Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222 (1957)], just as the petitioner in TC Heartland did.' But this would have taken some convincing, and until TC Heartland, no defendant succeeded in doing so in the 27 years following [VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574 (1990)]. To suggest that the defense of improper venue has always been available, and that TC Heartland did not effect a change in the law 'because it merely affirms the viability of Fourco[,]' ignores the significant impact of VE Holding and the patent bar’s reliance on the case for nearly three decades."

OptoLum Incorporated v. Cree, Inc., 2-16-cv-03828 (AZD July 24, 2017, Order) (Rayes, USDJ)